From 1 October 2019, employers will have greater certainty on when they can reject job applications from people with criminal records. The introduction of the Australian Human Rights Commission Regulations 2019 (Regulations) clarifies that it is lawful for employers to discriminate on the basis of a ‘relevant criminal record’. The Regulations also introduce a more contemporary definition of disability.

Overview of the Commission’s powers

The Australian Human Rights Commission Act 1986 (AHRC Act) enables the Commission to inquire into, and attempt to settle by conciliation, complaints of discrimination in employment on specified grounds. Subsection 3(1)(b) of the AHRC Act provides that the Attorney-General may declare, by regulation, additional grounds which constitute discrimination for the purposes of the Commission’s equal employment opportunity powers. There are ten additional grounds declared in the Regulations.

The Commission’s powers with respect to equal opportunity in employment differ to existing mechanisms to resolve workplace discrimination, such as complaints to the Commission under federal anti‑discrimination legislation. The powers have been described by some as a “toothless tiger” because the complainant has no right pursue their claim in the Federal Court or Federal Circuit Court, and there are no enforceable remedies for these complaints. If conciliation is unsuccessful and the Commission finds unlawful discrimination, the Commission can simply report the matter to the Attorney-General and make non-enforceable recommendations.

Further, the Commission’s equal opportunity in employment function provides broader coverage of protections for workplace discrimination than that under Commonwealth discrimination laws. For example, volunteers are not explicitly covered in the Disability Discrimination Act 1992, the Sex Discrimination Act 1984 or the Age Discrimination Act 2004 but are covered under the Commission’s equal opportunity in employment functions.

What do the new Regulations cover?

Irrelevant Criminal Record

The Regulations amend the ground of ‘criminal record’ to irrelevant criminal record. This amendment was introduced in response to concerns raised by the Commission’s report in BE v Suncorp Group Ltd [2018] AusHRC121, which involved a case where an employer discriminated by withdrawing a job offer to a man who had failed to disclose child pornography convictions, arguing that the criminal record demonstrated he was not of sufficient character and integrity to be trusted at work.

The effect of the amended ground is to clarify that, while 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 for which the person is applying. By ensuring that employers don’t discriminate on the basis of an irrelevant criminal record, the Regulations strike a better balance between enabling people with criminal records to find employment, whilst protecting an employer’s right to refuse employment when a person’s criminal record makes them unsuitable for the position they’ve applied for.

Disability

The Regulations also introduce a single ground of disability, which includes all disabilities and does not distinguish between different disabilities, like the old Regulations did. As well as aligning the definition with the Disability Discrimination Act 1992, it provides welcome clarity to employers and employees and limits the risk of uncertainty around whether a person’s disability fits within the protected ground.

Whilst the Regulations provide welcome clarity for employers and employees about the scope of the Commission’s powers to help resolve workplace discrimination complaints on the grounds of disability and irrelevant criminal records, it can also be a sensitive terrain that employers have to navigate.