Information brochure:
Discrimination in employment on the basis of criminal record
The Human Rights and Equal Opportunity
Commission (the Commission) has produced this brochure for people with a
criminal record who are seeking work or who are in employment.
It
outlines:
- the legal protections against discrimination in employment on the basis of criminal record
- definitions of what is and isn’t discrimination
- a range of options available if you think you have been discriminated against because of your criminal record
- a list of useful contacts.
What does the Human Rights and
Equal Opportunity Commission Act do?
The Human Rights and Equal Opportunity Commission Act (the HREOC Act) provides some protection for a person who has suffered discrimination in employment or occupation on the basis of criminal record.
What is discrimination in employment and occupation under the HREOC Act?
The HREOC Act covers discrimination
in employment and occupation. This includes when you have been:
- refused a job
- dismissed from employment
- denied training opportunities
- denied promotion
- subjected to less favourable working conditions
- harassed at work
- denied an employment-related licence or registration.
The
HREOC Act covers discrimination by Commonwealth, state or territory public
sector employers, private sector employers, employment agencies and licensing
and registration organisations.
What can I do if someone discriminates against me?
If you think you have been discriminated
against because of your criminal record, you can make a complaint to the
Commission under the HREOC Act. The Commission will investigate your complaint
and, where appropriate, try to
resolve the complaint by conciliation.
Conciliation is a process where the Commission brings the two parties (in this
case usually an employer and a person with a criminal record) together to try to
resolve the matter. This service is free.
The President of the
Commission may discontinue the complaint for a number of reasons, for example if
a person’s criminal record is relevant to the job.
If the President
decides that it is discrimination, and the complaint cannot be conciliated, the
President will then present a report to the federal Attorney-General making
recommendations. However, these recommendations are not enforceable under
law.
What is a criminal record under the HREOC Act?
There
is no definition of what is a criminal record in the HREOC Act. However, a
criminal record is not limited to what appears on your police record. It
includes your convictions, charges, police investigations, spent convictions and
unrecorded convictions. Not all of these will appear on your official police
record.
You can also make a complaint about discrimination because of
an ‘imputed’ criminal record. This is when an employer thinks you
have a criminal record, even if you do not have one, and treats you unfairly as
a result.
Can an employer refuse to employ me because of my criminal record?
Under the HREOC Act, it is not discrimination if your
criminal record means that you are unable to perform the ‘inherent
requirements’ of the job. This means that an employer can refuse to employ
you, or can dismiss you from employment, if your criminal record is relevant to
the particular job.
For example, fraud convictions may be relevant to a
job in financial management.
If you make a complaint of discrimination
and the employer claims that the criminal record is relevant to the job, the
Commission will investigate the complaint and make a decision on whether the
employer’s actions are justified by the inherent requirements
exception.
An example of a complaint to the Commission
Ms
C applied for a job as a bartender at a casino. She declared her prior
conviction for stealing two bottles of alcohol when she was 15 years old. She
was refused employment on the basis that the inherent requirements of the job
required her to be trustworthy and of good character.
Ms C made a
complaint to the Commission. The Commission agreed with the casino that it was
an inherent requirement of the job that a barperson be of good character and
trustworthy. However, it disagreed with the casino that Ms C’s criminal
record meant that she could not meet these requirements. It said that many
factors were relevant to an assessment of Ms C’s character including
- she was 15 when the conviction occurred
- the conviction was eight years old
- since her conviction she had held several jobs in the hospitality industry including as a bar manager/waitress which involved handling large amounts of money and she had references from some of those employers.
Because her complaint was unable to be conciliated, in 2002
the Commission made a report to the federal Attorney-General recommending that
the casino apologise to Ms C and not exclude her from applying again.
(HREOC
Report No.20)
Do I have to tell an employer about my criminal record?
You do not have to volunteer information about your criminal
record to an employer unless there is a legal requirement to do so. For
example, in some states it is a legal requirement that people working with
children disclose their criminal record. There may be penalties for failing to
volunteer your criminal record in these circumstances.
An employer should
only ask you to disclose your criminal record if a criminal record is relevant
to the particular job. The employer may ask you directly in an interview or job
application form, or request your consent to a police check.
If an
employer asks you to disclose your criminal record when you apply for a job, you
should answer honestly. However, if the employer refuses you employment because
of your criminal record, and you think your criminal record is irrelevant to the
job, you can make a discrimination complaint to the Commission.
You may
not need to disclose all of your criminal record when asked. If you have
an old conviction which is ‘spent’, generally you do not need to
disclose the conviction to an employer, even when asked (except for some
occupations such as correctional officers). (See information on spent
convictions laws below).
Can I be refused a licence or registration?
Licensing boards and registration organisations may ask you to disclose your criminal record and undertake a police check. However, they can only refuse you a licence or registration if your criminal record is relevant to the occupation. If you think you have been discriminated against by a licensing board or registration organisation, you can make a complaint to the Commission.
What other options do I have if I think I have been treated unfairly?
Explain your side of the story to the employer
Sometimes open and honest communication can help resolve
misunderstandings between an employer and a person with a criminal record.
If you think you have been discriminated against by an employer or
prospective employer because of your criminal record, try to explain to the
employer why your criminal record is irrelevant to the job. The following
information may help to persuade an employer:
- the circumstances of your offence which could count in your favour
- any indications that a court viewed the offences as relatively minor (eg. if the conviction was unrecorded)
- if the offence was a ‘one-off’
- the length of time since the offence took place
- your youth or immaturity when you committed the offence
- any evidence that you have taken steps in your personal or work life to move on from your past (eg. evidence that you have accepted responsibility for your actions)
- any character references from people who are aware of your criminal record.
Seek review of the decision
In some
organisations you can apply for a review of employment decisions. Licensing
bodies often have a review mechanism for decisions to reject a licence
application or revoke a licence.
If you think you have been unfairly
refused employment in the public sector because of your criminal record you may
also be able to complain to the state or Commonwealth Ombudsmen.
State and territory anti-discrimination laws
Tasmania and the Northern
Territory have laws that prohibit discrimination on the basis of criminal
record, which cover other areas as well as employment.
You can make a
complaint to the Northern Territory Anti-Discrimination Commission or the
Tasmanian Office of the Anti-Discrimination Commissioner if you live in these
states. The recommendations of these Commissions are enforceable by
law.
In WA and the ACT there are laws that prohibit discrimination on the
basis of spent convictions. You can make a complaint to the WA Equal Opportunity
Commission or the ACT Human Rights Office.
Privacy laws
There are privacy laws which cover the public sector in most states and territories which may provide you with some protection from breaches of your privacy. Private sector employers are covered by the Commonwealth Privacy Act 1988 (Cth). Complaints can be made to the Office of the Privacy Commissioner. The Privacy Commissioner also accepts complaints of breaches of the Commonwealth spent convictions law.
Spent convictions laws
A spent
conviction is an old conviction which the law says no longer needs to be
disclosed, except in special circumstances. Some laws also prohibit an employer
from taking a spent conviction into account in employment decisions.
A
conviction must be over ten years old in order to be spent (for an offence
committed as an adult) and less for a juvenile offence (three or five years,
depending on the law). You need to have committed no further offences since that
time. Also, serious offences usually cannot become spent, no matter how long ago
they were committed.
There are different Commonwealth, state and
territory spent convictions laws, so you need to know which one applies to you.
A legal service or the police service may help you find out.
If you think
an employer has unlawfully taken your spent conviction into account, you can
make a complaint to the body responsible in your state or territory (the police,
or an equal opportunity commission (in WA or ACT) – see contacts below),
or at the Commonwealth level (the Office of the Privacy Commissioner).
Industrial tribunals
If you think you have been unfairly dismissed from employment because of your criminal record, you may be able to make a complaint to state industrial tribunals or the Australian Industrial Relations Commission. However, not all employees are covered by unfair dismissal laws.
Useful contacts
Human Rights and Equal Opportunity Commission
Level 8 Piccadilly Tower
133 Castlereagh
Street, Sydney NSW 2000
GPO Box 5218, Sydney NSW 2001
Telephone:
(02) 9284 9600
TTY: 1800 620 241 (free call)
Complaints Info line: 1300
656 419 (local call)
Website: http://www.humanrights.gov.au
Complaints
Information Web Pages at: http://www.humanrights.gov.au/complaints_information/index.html
Information
on criminal record discrimination can be found at: http://www.humanrights.gov.au/human_rights/criminalrecord.
Office of the Privacy Commissioner
Level 8 Piccadilly
Tower
133 Castlereagh Street, Sydney NSW 2000
GPO Box 5218, Sydney
NSW 2001
Telephone: 1300 363 992 (local call cost from anywhere in
Australia)
TTY: 1800 620 241
Website: www.privacy.gov.au
For spent convictions
information, go to http://www.privacy.gov.au/act/convictions/index.html.
State and territory anti-discrimination agencies
Disclaimer: This is a guide only. You should seek independent legal
advice if you have specific questions about your own case.
