Human Rights: On the record: Discrimination in employment on the basis of criminal record under the AHRC Act (Chapter 2)
On the record
2 Discrimination in employment on the basis of criminal record under the AHRC Act
- 2.1 Definition of ‘discrimination’ under the AHRC Act
- 2.2 Definition of ‘criminal record’ under the AHRC Act
- 2.3 Who is covered by the AHRC Act (for criminal record discrimination)?
- 2.4 What employment areas does the AHRC Act apply to (for criminal record discrimination)?
- 2.5 What is not discrimination on the basis of criminal record under the AHRC Act?
The Commission’s powers and functions in relation to discrimination in employment on the ground of criminal record are contained in Part II – Division 4 (sections 30, 31 and 32) of the AHRC Act and the Australian Human Rights Commission Regulations 1989 (Cth), reg 4.
The Commission’s jurisdiction to handle these complaints is underpinned by the International Labour Organisation Discrimination (Employment and Occupation) Convention 1958 (ILO111), which Australia has ratified, and which is scheduled to the AHRC Act.
Under section 31 of the AHRC Act the Commission has the authority to ‘investigate any act or practice, including any systemic practice that may constitute discrimination and where appropriate try to resolve the complaint of discrimination by conciliation.’ A summary of the Commission’s complaints process is set out in Appendix 1 of these Guidelines.
Although the Commission may find that certain conduct is discriminatory, if the complaint is unable to be conciliated, then the Commission’s actions are limited to preparing a report with recommendations to the Attorney-General, for tabling in federal Parliament. The Commission does not have the authority to implement its recommendations or make respondents to a complaint comply with them.[1]
2.1 Definition of ‘discrimination’ under the HREOC Act
Discrimination is defined in Section 3 (1) of the AHRC Act as follows:
(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
(b) any other distinction, exclusion or preference that:
(i) has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
(ii) has been declared by the regulations to constitute discrimination for the purposes of this Act;
Examples of such ‘distinction, exclusion or preference’ which may nullify or impair equality include rejection of job applications, termination from employment, lack of promotion, harassment in the workplace and lack of training for employment or promotion purposes.
Although not specifically defined, indirect discrimination is also discrimination under the AHRC Act. Indirect discrimination occurs when an apparently neutral condition, required of everyone, has a disproportionately harsh impact on a person with an attribute such as criminal record.[2] An intention to discriminate is not necessary for a finding of discrimination.
2.2 Definition of ‘criminal record’ under the HREOC Act
Under the AHRC Act, there is no definition of what constitutes ‘criminal record’. However, it has been interpreted broadly to include not only what actually exists on a police record, but also the circumstances of the conviction.[3]
This means that a complaint of discrimination under the AHRC Act is not limited to an allegation of discrimination based on what appears on a police record check only. A criminal record for the purposes of the AHRC Act can include charges which were not proven, investigations, findings of guilt with non-conviction and convictions which were later quashed or pardoned. It also includes imputed criminal record. For example, if a person is denied a job because the employer thinks that they have a criminal record, even if this is not the case, a person may make a complaint to the Commission.
The AHRC Act does not specifically protect someone against discrimination on the basis of a criminal record held by association, for example against a family member or friend. However, if a person was imputed to have a criminal record simply because a family member or friend had a criminal record, they may be protected under the AHRC Act.
The interpretation of ‘criminal record’ under the AHRC Act does not mirror the meaning of criminal record when discussing police checks in various police jurisdictions. Criminal record in this context refers to what is recorded and what is released on official police records. However, this can differ by state and territory, and according to who the information is released to. The information contained in police records is discussed in Section 5.6.
2.3 Who is covered by the AHRC Act (for criminal record discrimination)?
The AHRC Act covers employers and employees in all states and territories. This includes Commonwealth government employers, state and territory government employers, private sector employers, non-government community sector employers and employment agencies, as well as authorities for the licensing and registration of employees. Small business employers are also covered under the AHRC Act.
The AHRC Act includes all types of employees and prospective employees: temporary, casual, full-time and part-time workers, apprentices and trainees.
Volunteers are not covered unless the voluntary work is related to training or work experience leading directly to employment, or pursuing a particular occupation. For example, the AHRC Act may provide some protection from discrimination if a social work student was denied the opportunity to participate in a community placement because of their criminal record.
2.4 What employment areas does the HREOC Act apply to (for criminal record discrimination)?
The AHRC Act defines ‘employment’ and ‘occupation’ to include:
… access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.
As a result, the Commission has investigated allegations of discrimination on the basis of criminal record in relation to:
- recruitment
- vocational training
- promotion
- conditions at work
- termination
- employment-related licensing or registration.
Most complaints received by the Commission have been in relation to the recruitment process. This category is closely followed by terminations of employment.
2.5 What is not discrimination on the basis of criminal record under the HREOC Act?
The AHRC Act provides a general exception to discrimination in employment, known as the inherent requirements exception.
It is not discrimination if the person’s criminal record means that he or she is unable to perform the inherent requirements of the particular job.[4]
The anti-discrimination legislation in Tasmania and the Northern Territory uses the words ‘irrelevant criminal record’ to express the same concept.
The AHRC Act does not define what is meant by ‘inherent requirements’, however in case law it is generally understood that there is no discrimination if an applicant does not get a job or promotion because they cannot fulfil the essential aspects of a particular job.
‘Inherent requirement’ is discussed in greater detail in Section 4 – Determining the inherent requirements of the job.
The AHRC Act also provides an exception for any distinction, exclusion or preference that is in connection with employment in a religious institution, as long as it is made in good faith in order to avoid injury to religious beliefs.[5]
Further, if an employer is carrying out their obligations in direct compliance with a law, it is likely that the Commission will discontinue its inquiry into the complaint. However, the Commission can examine a Commonwealth law for its discriminatory aspects and recommend its amendment to the federal Parliament.
Notes
[1] As of January 2012, there have been six cases where the Commission has made a finding of discrimination on the basis of criminal record. In these cases the recommendations made by the Commission were either not followed by the employer, or it was unclear whether action had been taken by the employer. Human Rights and Equal Opportunity Commission (HREOC, previous name of Australian Human Rights Commission), Reports of inquiries into complaints of discrimination in employment on the basis of criminal record, Mr Mark Hall v NSW Thoroughbred Racing Board, HREOC Report No. 19 (Hall’s Case); HREOC, Ms Renai Christensen v Adelaide Casino Pty Ltd, HREOC Report No. 20 (Christensen’s Case), 2002; HREOC, Report of an Inquiry into a complaint by Ms Tracy Gordon of discrimination in employment on the basis of criminal record, HREOC Report No. 33, 2006; HREOC, Report of an inquiry into a complaint by Mr Frank Ottaviano of discrimination in employment on the basis of criminal record against South Australia Police (State of South Australia), HREOC Report No. 38, 2007 (Ottaviano’s Case); Australian Human Rights Commission (AHRC), Mr KL v State of NSW (Department of Education) – Report into discrimination in employment on the basis of criminal record, AusHRC 42, 2010; AHRC, Mr CG v State of NSW (RailCorp NSW) – Report into discrimination in employment on the basis of criminal record, AusHRC 48, 2012. All reports are available online at www.humanrights.gov.au/legal/humanrightsreports/index.html. (Viewed 13 March 2012).
[2] International Labour Conference, Equality in Employment and Occupation: General Survey by the Committee of Experts on the Application of Conventions and Recommendations ILO, Geneva, 1988.
[3] Hall’s Case, p 20.
[4] Section 3(1), AHRC Act.
[5] Section 3(1), AHRC Act.
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