Every employer has the right to employ someone of their own choosing, based on a person’s suitability for a job. Employers best understand the main requirements of that job and what qualities are needed in an employee to meet those requirements. Yet it is also in employers’ interests to treat job applicants and employees fairly and in accordance with legal obligations, including anti-discrimination laws.
In recent years there have been a significant number of complaints to the Australian Human Rights Commission from people alleging discrimination in employment on the basis of criminal record. The complaints indicate that there is a great deal of misunderstanding by employers and people with criminal records about discrimination on the basis of criminal record.
As a result, in August 2004 the Human Rights Commissioner on behalf of the Commission commenced a research project to examine more closely the extent and nature of this discrimination, to clarify the rights and responsibilities of employers and employees, and to consider measures which may be taken to protect people from this form of discrimination. In December 2004 the Commissioner issued a Discussion Paper on Discrimination in Employment on the basis of Criminal Record, calling for submissions. These submissions, together with a series of consultations on the issue of criminal record discrimination, highlighted further the need for practical guidance for employers and employees in this area. These Guidelines are a result of this research and consultation process.
These Guidelines were initially revised in 2007, with further revisions in 2012.
The Guidelines are not legally binding. They are not intended to be (and should not be) relied on for legal advice. The Guidelines provide practical guidance on the rights and responsibilities relating to discrimination in employment on the basis of criminal record that arise under the AHRC Act.
These Guidelines also cover some areas of workplace practice and policy which at first sight do not appear to be directly related to discrimination on the basis of criminal record under the AHRC Act. However, Commission research shows that there are a complex set of intersecting laws with a direct impact on criminal record discrimination. For example, misunderstandings and incorrect application of spent convictions laws by employers and employees can lead to complaints of discrimination. As a result, these Guidelines provide some limited information and guidance on spent convictions laws, privacy laws, industrial laws and police record policies in order to assist employers avoid the pitfalls of discrimination.
 Under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), the Australian Human Rights Commission has various functions aimed at fostering equality of opportunity in employment, including preparing and publishing guidelines to prevent discrimination in employment: AHRC Act, s 31(h).
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