Discrimination in Employment on the Basis of Criminal Record

Discrimination in Employment on the Basis of Criminal Record

In recent years the Australian Human Rights Commission has received a significant number of complaints from people alleging discrimination in employment on the basis of criminal record. The complaints indicate that there is a great deal of misunderstanding by both employers and people with criminal records about discrimination on the basis of criminal record.

• 23% of all complaints received by the Commission under the AHRC Act were on the basis of criminal record discrimination (July 2010 – June 2011)

What is discrimination on the basis of criminal record?

Criminal record discrimination occurs when someone does not experience equality of opportunity in employment because of their criminal record. This may include being refused a job, dismissed from employment, denied training opportunities or being harassed at work on the basis of their criminal record.

Discrimination in employment is prohibited by the International Labour Organisation Convention 111 (ILO 111). ILO 111 is scheduled to the Australian Human Rights Commission Act.

What is not discrimination on the basis of criminal record?

It is not discrimination if a person’s criminal record means that he or she is unable to perform the inherent requirements of a particular job. This must be determined on a case-by-case basis, according to the nature of the job and the nature of the criminal record. Employers in certain industries may also be legally obliged to refuse employment to people with certain types of criminal records.

• For information on discrimination in employment, see Discrimination in employment
• For information on the rights of prisoners, see Prisoners’ Rights

Is discrimination on the basis of criminal record unlawful?

Criminal record discrimination is not unlawful under federal law. However, the Commission may investigate complaints of discrimination in employment on the basis of criminal record and, where appropriate, try to resolve them by conciliation. When a complaint cannot be resolved by conciliation, or where conciliation is inappropriate, and the Commission finds that there has been a breach of human rights or that workplace discrimination has occurred, it may prepare a report for the federal Attorney-General which must be tabled in Parliament.

Click here to read reports to the Attorney-General relating to complaints about discrimination on the basis of criminal record (see Reports No. 19, No. 20, No. 33, No. 38, No. 42, No. 48).

At the state level, Tasmania and the Northern Territory have laws that make criminal record discrimination unlawful. However, in other states and territories, criminal record discrimination is not specifically prohibited by law.

For more information on criminal record discrimination, see 'On the Record': Guidelines for the prevention of discrimination in employment on the basis of criminal record.

How can discrimination on the basis of criminal record be prevented?

Following an extensive research and consultation process, in 2005 the Human Rights Commissioner published On the Record: Guidelines for the prevention of discrimination in employment on the basis of criminal record. These Guidelines provide practical solutions to the problems faced by employers and employees in the area of discrimination on the basis of criminal record.

The Guidelines were revised in March, 2012.

The Commission also produced an information brochure designed to assist people who have a criminal record avoid discrimination in employment. It provides practical information about the rights of employees and their employers. It also explains what options are available to a person who believes they have been discriminated against on the basis of their criminal record.

The information brochure was revised in March, 2012.

Past projects and publications

• 'On the Record' - Guidelines for the prevention of discrimination in employment on the basis of criminal record
• Information brochure for people with a criminal record
• Criminal Record Discussion Paper
• Submissions Received to the Criminal Record Discussion Paper

Criminal Record Discussion Paper

This discussion paper identifies relevant law and policy in the area of discrimination in employment on the basis of criminal record. The discussion paper looks at some of the practical difficulties faced by both employers and employees when a person with a criminal record seeks to participate in the workplace.

• Read the Criminal Record Discussion Paper

After producing the discussion paper, we asked for the views of all stakeholders as to what needs to be done to eliminate discrimination on the basis of criminal record. These submissions assisted in the production of On the Record.

• Read submissions to the Criminal Record Discussion Paper