In the recent case of Mr CG v State of NSW (Rail Corporation NSW) [2012], the NSW passenger train operator, RailCorp was found to have discriminated against a job applicant based on his criminal record. A criminal record is a ground of discrimination under the Federal Human Rights Commission Act 1986 (HRCA) and certain State discrimination laws, and the results cannot form the basis of any decision to reject an applicant unless there is a ‘tight and close’ connection between the conviction and the inherent duties of the position. Criminal records include convictions, charges, police investigations, spent convictions and unrecorded convictions, but not all of these will appear on official police records. Employers should: ensure that any equal opportunity policy also relates to recruitment decisions and should educate staff about this policy; consider their obligations under privacy legislation when retaining criminal history information on an employee’s file; and only require information about a candidate’s criminal record if there is a close connection between position requirements and the criminal record.
