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Learn about the Australian Human Rights Commission's human rights glossary in relation to criminal records, such as conviction, police check and CrimTrac.

The following Guidelines form the basis for best practice workplace policy and practice on employing people with a criminal record. They are described in more detail in On the Record – Guidelines for the prevention of discrimination in employment on the basis of criminal record.

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.

Under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), the Commission can handle complaints about discrimination in employment or occupation on the basis of criminal record.

Tasmania and the Northern Territory have laws that specifically prohibit discrimination on the basis of criminal record. The laws cover discrimination in other areas as well as employment, including the provision of goods and services, education and accommodation.

Under the AHRC Act, an employer can make a distinction against someone with a criminal record if the person’s particular criminal record means that they are unable to fulfil the inherent requirements of the job. Another way of putting this is that an employer can make a distinction against someone if the criminal record is relevant to the job. This conduct does not constitute discrimination under the AHRC Act.

If an employer has a fair and open process of dealing with the disclosure of criminal records at the outset, many complaints of discrimination can be avoided.

The Commission accepts complaints of discrimination on the basis of criminal record from people who allege that they have been discriminated against in their conditions of employment. For example some people may feel discriminated against because they have been denied promotion or training on the basis of their criminal record. As with recruitment and termination decisions, an employer should only deny a person these benefits and conditions of employment if the criminal record is relevant to the inherent requirements of the job.

However, this step should never be taken lightly and should constitute a last resort for the employer after a consideration of all the issues. This will involve a consideration of an employer’s legal responsibilities under anti-discrimination law and unfair dismissal laws (see Section 3).

There are an increasing number of professions and occupations which require licensing and registration before employment is possible. Key examples include teaching, nursing, casino workers, taxi drivers and bus drivers. Usually licensing and registration organisations apply specific legislation that requires a criminal check for each individual applicant.

An organisation covered by the Privacy Act must only collect necessary criminal record information (for example, this should be information relevant to the job in question) and must collect it fairly and lawfully.

Useful contacts for support in cases of discrimination in employment on the basis of criminal record

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