The Law Handbook 2024

Chapter 3.9: Understanding criminal records 249 proactive steps to prevent unlawful discrimination from occurring. If you have been treated unfairly because of a spent conviction in areas of public life, you may have experienced unlawful discrimination. This could include: • being refused accommodation; • not being accepted for a job (and the employer does not have an exemption); • denied a service (eg banking and insurance); • treated unfairly at work or at school; or • prevented from joining a club. If you have been discriminated against because of a spent conviction, you can contact the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) and/or seek legal advice. The VEOHRC has developed a spent conviction discrimination guideline which provides further information: www. humanrights.vic.gov.au/for-individuals/spent- conviction/. If you wish to make a complaint to the VEOHRC, you should do so within 12 months of the unlawful discrimination occurring. Some protection is also available under the Australian Human Rights Commission Act 1986 (Cth) (‘ AHRC Act ’) for people who have been treated unfairly on the basis of having a criminal record. If you think you have been treated unfairly, you may be able to obtain redress and you should seek legal advice. The AHRC Act prohibits discrimination on the basis of ‘irrelevant criminal record’ (AHRC Act s3(1), Australian Human Rights Commission Regulations 2019 (Cth), r 6(a)(iii)). The scope of the prohibition is somewhat broader under the AHRC Act, as ‘irrelevant criminal record’ can include convictions which have not been spent, whereas the Equal Opportunity Act 2010 (Vic) only applies to ‘spent conviction’ related discrimination (s 6(pb)). The Australian Human Rights Commission ( AHRC ) can investigate discrimination and, where appropriate, try to resolve a discrimination complaint by conciliation. The AHRC can only provide recommendations and does not have the authority to implement or enforce the recommendations, although their recommendations are reported to the federal parliament and are published. Some examples of AHRC reports of inquiries into complaints of discrimination in employment on the basis of criminal record include: • HREOC Report No. 20, Ms Renai Christensen v Adelaide Casino Ltd; • HREOC Report No. 19, Mr Mark Hall v NSW Thoroughbred Racing Board. There is no discrimination where a person’s criminal record means that they are unable to perform the inherent requirements of a particular job. The AHRC has published Discrimination in Employment on the Basis of Criminal Record and other useful information, which can be found at www. humanrights.gov.au. The guidelines outline a process to help determine whether a criminal record may interfere with the inherent requirements of a job. The AHRC has dealt with discrimination on the basis of criminal record in several cases, including: • AV v Dial-An-Angel Pty Ltd [2015] AusHRC 97; • AN v ANZ Banking Group Ltd [2015] AusHRC 93; • PJ v AMP Financial Planning Pty Ltd [2014] AusHRC 89; • BE v Suncorp Group Ltd [2018] AusHRC 121; • Ms Jessica Smith v Redflex Traffic Systems Pty Ltd [2018] AusHRC 125. Employment in the public service Criminal record checks for jobs advertised as ‘public sector positions’ are covered by specific recruitment guidelines. The guidelines usually say that checks should only be completed for the people who are to be offered jobs. The guidelines suggest that people be given an opportunity to discuss any criminal history, usually with the human resources manager, before a final decision about employment is made. The public sector agency should consider a number of circumstances, including the age of the prior finding of guilt, your age at the time, the number of convictions, the sentence imposed by the court, evidence of rehabilitation including subsequent work experience, and any extenuating circumstances. The main thing for your potential employer to consider is whether the criminal record is relevant to your employment. If you are unsure about whether you have to disclose a previous criminal record for a job, you should seek legal advice from a lawyer who practices in employment law (see Chapter 2.4: Legal services that can help).