Criminal Record and Employment Rights in Australia: What Protection Actually Exists

Australia has no general Commonwealth law making it unlawful to refuse someone employment because of a criminal record. The Australian Human Rights Commission can inquire into and try to conciliate a complaint about an "irrelevant criminal record", but if conciliation fails there is no court the complainant can take the matter to.

This article addresses the legal protection, and its real limits, that applies to a person's criminal record in an Australian employment context: the Commonwealth human rights complaint pathway, the Fair Work Act, an employer's obligations under the Privacy Act, and examples of stronger state-level protection. It does not tell a reader whether their own record would, or would not, affect a specific hiring decision, and it should not be read as a promise that any legal avenue described here will produce a particular outcome.

There Is No General Commonwealth Ban on Criminal-Record Discrimination

Unlike race, sex, disability and age, which are each protected by a dedicated Commonwealth Discrimination Act with court enforcement, criminal record has no equivalent standalone Commonwealth Act. The protection that does exist sits inside the Australian Human Rights Commission Act 1986, and it is structurally weaker than the dedicated Discrimination Acts. Overstating this protection, treating it as equivalent to the enforceable Discrimination Act regimes, is one of the easiest mistakes to make in this area, and it gives a reader false confidence about what recourse they actually have.

What the AHRC Pathway Actually Offers

Section 31(b) of the Australian Human Rights Commission Act 1986 gives the Commission power to inquire into any act or practice that may constitute discrimination and, where it considers it appropriate, to attempt to effect a settlement by conciliation. "Discrimination" for this purpose extends, through a regulation-making power in the Act, to grounds including an "irrelevant criminal record" in the employment context, which is how Australia gives effect to the Discrimination (Employment and Occupation) Convention, 1958 (ILO Convention 111). In practice this means a person who believes they were refused a job, or dismissed, because of a criminal record that has no genuine bearing on the role can lodge a complaint with the Commission, which will investigate and attempt conciliation between the parties.

If Conciliation Fails, There Is No Court to Go To

This is the point most often overstated. If conciliation does not resolve the complaint, the Commission's only remaining step for this ground is a report it may give to the Minister under section 32A of the Act. Unlike the general position under section 46, which requires most Commission reports to be tabled in Parliament, the Act expressly excludes a section 32A report from that tabling requirement; it goes to the Minister and the parties, not automatically to Parliament. There is no equivalent to section 46PO, the provision that lets a complainant under the Race, Sex, Disability or Age Discrimination Acts apply to the Federal Court or the Federal Circuit and Family Court if conciliation of their complaint under one of those Acts fails. A criminal-record discrimination complaint under the AHRC Act's employment provisions cannot reach that court pathway at all, because the Act's definition of "unlawful discrimination", the trigger for court proceedings, does not extend to this ground. This is the structural gap that separates the AHRC's irrelevant-criminal-record jurisdiction from the enforceable Discrimination Acts, and it is the single easiest point for a general description of this area to get wrong by omission.

The Fair Work Act's Adverse-Action Protection Does Not List Criminal Record

Section 351 of the Fair Work Act 2009 prohibits an employer from taking adverse action against an employee or prospective employee because of a defined list of attributes: race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction, or social origin. Criminal record is not on that list. A person who believes they were dismissed or refused work because of a criminal record cannot rely on section 351's adverse-action protection for that reason alone; they would need a different basis for a claim, such as unfair dismissal rules where they apply, or the AHRC pathway described above, with its own significant limits.

What Employers Must Do Before Collecting a Criminal Record

There is no blanket bar on an employer requesting a police check, but criminal record is expressly listed as "sensitive information" under section 6(1) of the Privacy Act 1988, which means Australian Privacy Principle 3 applies. Under APP 3, an entity must have the individual's consent to collect it, and the collection must be reasonably necessary for, or directly related to, the entity's functions or activities. The Office of the Australian Information Commissioner's APP Guidelines state that an entity should generally seek express consent before collecting sensitive information, given the greater privacy impact involved. A blanket policy of running a police check on every hire regardless of role raises risk precisely because it skips the individual assessment this framework calls for. The correct test is not categorical exclusion; it is weighing the person's actual record against the inherent requirements of the specific job and the genuine correlation between the two.

Spent-Conviction Rights Sit Alongside These Protections

Separately from the discrimination pathway, an employer generally cannot require a person to disclose a conviction that has become spent under the relevant Commonwealth or state scheme; see spent convictions in Australia for how those schemes differ between jurisdictions. Victoria goes further and makes it a specific offence, carrying a 40 penalty unit maximum, for a person with access to conviction records to disclose or use information about a spent conviction without authorisation. Equivalent standalone disclosure offences in other states have not been independently verified for this article and should not be assumed to mirror Victoria's position.

Some States Add Their Own, Stronger Protection

The Commonwealth position described above is not the end of the story everywhere. The Northern Territory's Anti-Discrimination Act 1992 lists "irrelevant criminal record" as a protected attribute in its own right under section 19(1)(q), giving it enforceable status under NT anti-discrimination law rather than the conciliation-only pathway available federally. Other jurisdictions have also been reported to provide their own protection for irrelevant criminal record; this article does not assert which other states do or do not, beyond the Northern Territory position confirmed here, and a reader should check the anti-discrimination law of their own state or territory directly rather than assuming the weaker federal position is the whole picture.

This article provides general legal information about criminal record and employment law in Australia, verified 21 July 2026. It does not assess whether a specific hiring decision was lawful, or whether a reader's own record will affect a particular application. For advice on your situation, consult a legal practitioner admitted in the relevant Australian state or territory.

Related reading: the background checks hub, national police checks in Australia, and spent convictions in Australia.

Frequently Asked Questions

Is it illegal to refuse someone a job because of a criminal record in Australia?

There is no general Commonwealth law making this unlawful outright. The Australian Human Rights Commission can inquire into and try to conciliate a complaint about an irrelevant criminal record, but if conciliation fails there is no court avenue for that ground under Commonwealth law.

What happens if conciliation of an AHRC criminal-record complaint fails?

The Commission's only remaining step for this ground is a report it may give to the Minister. The Act expressly excludes that report from the general requirement that Commission reports be tabled in Parliament, and there is no equivalent to the Federal Court pathway available under the Race, Sex, Disability or Age Discrimination Acts.

Does the Fair Work Act protect against criminal-record discrimination?

Not directly. Section 351's adverse-action protection lists specific attributes such as race, sex, age and disability, but criminal record is not among them.

Can an employer ask for a police check on every job applicant?

There is no blanket legal bar, but criminal record is sensitive information under the Privacy Act, so the employer needs the applicant's consent and the collection must be reasonably necessary for, or directly related to, the role. A blanket policy that skips individual assessment of the role and the record raises risk under this framework.

Does any Australian state have stronger protection than the Commonwealth position?

The Northern Territory's Anti-Discrimination Act 1992 lists "irrelevant criminal record" as an enforceable protected attribute in its own right. Other jurisdictions have been reported to offer their own protection, but this article only confirms the Northern Territory position; check your own state or territory's anti-discrimination law directly.