Managing recruitment and workplace risk is a genuine concern for employers and conducting criminal history checks can help with this. However, making decisions about employees or job applicants based solely on their criminal history can expose businesses to significant legal and reputational risks.
For employers, understanding when criminal history may be relevant, and when it may amount to unlawful discrimination, is critical to maintaining compliant and fair workplace practices.
Is criminal history a protected attribute?
Unlike attributes such as sex, age, race or disability, criminal history is not specifically protected under Queensland anti-discrimination legislation. However, employers still need to exercise caution.
At a federal level, discrimination on the basis of an “irrelevant criminal record” can give rise to complaints under the jurisdiction of the Australian Human Rights Commission (AHRC). The AHRC can investigate complaints where a person believes they were treated unfairly because of a criminal record that is not relevant to the inherent requirements of the role.
In practice, this means employers should avoid blanket rules such as:
- “We do not hire anyone with a criminal record”
- Automatically terminating an employee after learning of a conviction
- Rejecting candidates without considering the nature and relevance of the offence
Instead, employers should undertake an individual assessment based on the circumstances of the role and the criminal history involved.
The “inherent requirements” test
The key consideration is whether the criminal history prevents the person from performing the inherent requirements of the position.
“Inherent requirements” are the essential duties or core functions of the role, not duties that are incidental or could reasonably be modified.
For example:
- A conviction for fraud or theft may be highly relevant to a finance or payroll position
- A drink driving offence may be relevant for a role involving commercial driving
Historical or unrelated offences may have little or no relevance to many administrative or operational positions
Employers should assess:
- The nature and seriousness of the offence
- When the conduct occurred
- Whether there has been rehabilitation
- The specific duties of the role
- Any risks to clients, customers, workers or the public
- Whether legislative or licensing obligations apply
Importantly, relevance matters more than the existence of a criminal record itself.
Recruitment risks for employers
Recruitment processes are often where many discrimination issues arise.
Employers should ensure:
- Criminal history checks are only conducted where genuinely necessary
- Applicants are informed if checks will occur
- Information obtained is handled confidentially
- Decisions are based on objective and role-related considerations
A criminal history check should not become a “tick-box exclusion” process.
For example, rejecting an applicant because of a decades-old minor offence unrelated to the position could expose an employer to scrutiny or complaint.
Employers should also avoid asking overly broad questions during recruitment, particularly where the information sought is unlikely to be relevant to the role.
Existing employees and criminal charges
Issues can also arise where an existing employee is charged with or convicted of an offence.
A criminal charge outside the workplace does not automatically justify disciplinary action or dismissal.
Employers should consider:
- Whether the conduct impacts the employee’s ability to perform their role
- Whether it creates a genuine safety or reputational risk
- Whether it damages the employment relationship
- Any obligations arising under legislation, licences or contracts
Employers should also remember that a charge is not the same as a conviction.
Taking action prematurely, particularly without proper investigation or procedural fairness, may expose the business to unfair dismissal, adverse action or discrimination-related claims.
Working with children and regulated industries
Some industries are subject to mandatory screening requirements.
For example:
- Blue Card requirements apply to many child-related roles
- NDIS worker screening may apply in disability services
- Certain security, financial or government-related positions may require police clearances by law
Where legislation specifically prevents a person from performing a role due to criminal history, employers are generally on stronger legal footing in making employment decisions based on that history.
However, even in regulated industries, employers should ensure decisions are based on actual legal requirements rather than assumptions.
Best practice steps for employers
Employers can reduce risks by implementing clear and consistent practices, including:
- Developing a documented criminal history screening policy
- Limiting checks to roles where they are genuinely necessary
- Assessing each case individually
- Keeping records of decision-making processes
- Ensuring procedural fairness before taking disciplinary action
- Training managers and recruiters on discrimination risks
- Seeking advice before making high-risk termination decisions
A balanced and evidence-based approach is often the safest path.
How can Business Chamber Queensland help?
Business Chamber Queensland’s Workplace Advisory team helps employers take a practical, informed approach when managing issues involving criminal history in recruitment and employment. We can assist you to assess whether a criminal record is relevant to the inherent requirements of a role, identify discrimination risks, and make decisions that are fair, defensible and aligned with workplace laws.
Whether you are reviewing recruitment practices, responding to a disclosure or charge involving an employee, or navigating obligations in a regulated industry, we can support you with policy development, tailored advice, manager training and case-by-case guidance. Our team works with employers to reduce legal risk while maintaining a fair and consistent approach to workplace decision-making.
