When is it unlawful to discriminate based on an employee’s criminal record?

Under federal and some state anti-discrimination laws it is unlawful for an employer to discriminate against a person based on a spent conviction or an ‘irrelevant criminal record’. This legal obligation can make it difficult for employers to navigate the recruitment and employment processes when criminal records are disclosed or obtained via a police check.

For potential employees, a criminal record can be a significant hinderance to obtaining employment, and therefore laws are in place to protect unlawful discrimination. For employers, the impact of a criminal record can be a question of concern for matters in their workplace.

This question was recently considered by the ACT Civil and Administrative Tribunal (ACAT). In this case, it was found that the applicant was unlawfully discriminated against when her manager discovered her criminal history and then removed her from active work and placed her on gardening leave, removed her access to work systems, and did not extend her temporary contract. The applicant was awarded $265,372 in damages in relation to past and future loss of earnings, general damages, future medical expenses and superannuation loss.

Overview of legislation

Anti-discrimination laws provide that it is unlawful to discriminate against a person with a protected attribute or characteristic. Some state laws provide that a criminal record can be the basis for unlawful discrimination (particularly where the offence is not directly relevant to the role), while other states provide that it is prohibited to discriminate on the basis of a spent conviction. A conviction can become “spent” after a prescribed period of time has elapsed (usually after 10 years, for an adult) or if the circumstances otherwise meet the definition of a “spent conviction” in the relevant jurisdiction.

Federal legislation includes the Australian Human Rights Commission Regulations 2019 (Cth) (Regulations) which amended the definition of discrimination under the Australian Human Rights Commission Act 1986 (Cth). The Regulations were updated in 2019 to prohibit an employer from discriminating against an employee, or a prospective employee, based on an ‘irrelevant criminal record’. This protected attribute applies in respect to discrimination during both recruitment and employment.

Facts of the case

In late 2024, Senior Member Bryan Meagher SC awarded the applicant the sum of $265,372 after ACAT found that she had been discriminated against by her former employer, the ACT Government, due to her irrelevant criminal record in breach of the Discrimination Act 1991 (ACT).

Between 2010 to 2017, the applicant had committed a number of offences, including dishonesty and conspiracy to sell prohibited drugs.  Subsequently, in 2021 she committed two minor misdemeanours.

In 2021, the applicant applied for employment with the ACT Government and in doing so she informed them in full of her criminal record. When she was unsuccessful due to her criminal record, she complained to the Human Rights Commission. Following her successful complaint, the ACT Government hired her in a temporary position later in the same year, but she was unable to obtain a permanent position.

The applicant continued to work in temporary positions up until March 2023 when she was the successful candidate for a permanent role at the Canberra Institute of Technology (CIT). The new role was to begin in April 2023. However, on 6 April 2023, the police executed a warrant in connection to a person they were investigating (a man that the applicant had a relationship with). When the applicant’s work laptop (a government computer) was found, the police passed her information onto the ACT Integrity Commission who passed her criminal record to her manager.

So, while the ACT Government knew of her criminal record when she was originally employed with them in 2021, her direct manager did not – and took swift action to deny the applicant access to the pay system, remove her from active work, placed her on gardening leave and advised her that employment contract would not be renewed. CIT also withdrew their offer of employment based on the consequences of her exiting job with the Government.

Findings

In the Senior Member’s decision, it was noted that the applicant, a single mother of two, had suffered a difficult life. Further, the applicant submitted that the impact of the discrimination had revived her PTSD to a significant degree, and this was evidenced by her forensic psychiatrist who estimated that she would need approximately seven years of ongoing care.

The Senior Member also made comment that the criminal record might have been alarming to someone who did not know all the facts, however, it was determined that the action taken against the applicant was discriminatory on the basis of her irrelevant criminal record. The significant damages ordered demonstrate the severity of the discrimination and the detrimental impact on the applicant, and should serve as a reminder to employers of their legal obligations.

Implications for employers

If your business requires individuals to undergo police checks it is important to understand your legal obligations to ensure that you do not unlawfully discriminate against an employee or prospective employee based on a criminal record, particularly where past offences are irrelevant to the job they are performing. However, in some circumstances, a criminal record can be a lawful prohibition into entering certain professions, and each matter should be assessed on a case-by-case basis. If you have any questions about your obligations in relation to discrimination, please contact HR Legal for further information.

Case Reference: Complainant DT232023 v The Australian Capital Territory (Represented by Community Services Directorate) (Discrimination) [2024] ACAT 89

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.