On the record
1 Introduction
Under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act), the Human Rights and Equal Opportunity Commission (the Commission) has various functions aimed at fostering equality of opportunity in employment, including preparing and publishing guidelines to prevent discrimination in employment. 1
In recent years there have been a significant number of complaints to the Commission from people alleging discrimination in employment on the basis of criminal record. The complaints indicate that there is a great deal of misunderstanding by employers and people with criminal records about discrimination on the basis of criminal record.
As a result, in August 2004 the Human Rights Commissioner on behalf of the Commission commenced a research project to examine more closely the extent and nature of this discrimination, to clarify the rights and responsibilities of employers and employees, and to consider measures which may be taken to protect people from this form of discrimination. In December 2004 the Commissioner issued a Discussion Paper on Discrimination in Employment on the basis of Criminal Record, calling for submissions. These submissions, together with a series of consultations on the issue of criminal record discrimination, highlighted further the need for practical guidance for employers and employees in this area. These Guidelines are a result of this research and consultation process.
These Guidelines are not legally binding. They are not intended to be (and should not be) relied on for legal advice. The Guidelines provide practical guidance on the rights and responsibilities relating to discrimination in employment on the basis of criminal record that arise under the HREOC Act.
These Guidelines also cover some areas of workplace practice and policy which at first sight do not appear to be directly related to discrimination on the basis of criminal record under the HREOC Act. However, Commission research shows that there are a complex set of intersecting laws with a direct impact on criminal record discrimination. For example, misunderstandings and incorrect application of spent convictions laws by employers and employees can lead to complaints of discrimination. As a result, these Guidelines provide some limited information and guidance on spent convictions laws, privacy laws, industrial laws and police record policies in order to assist employers avoid the pitfalls of discrimination.
The Commission has also published a short document outlining some Key Points from these Guidelines, for ease of reference.
Notes
1 Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act), s31(h).
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