Yes, but ...
australia
The Human Rights and Equal Opportunity Act (Cth) (HREOC Act) makes it illegal to discriminate on the basis of a criminal record unless it makes them unable to perform the 'inherent requirements' of the job.
Some States and Territories have decided that there are particular types of employment, for instance in working with children, where people with a certain criminal record will not be able to be employed. In addition, some professional and occupational licensing bodies have considered the special characteristics of their field and developed licensing and registration rules which address the relevance of a person's criminal record to that profession.
In other fields there is very little guidance for employers as to what the inherent requirements of a particular job might be and how to assess whether a person meets those requirements.
However, no matter what the inherent requirements of a position are, and no matter what a person's criminal record, each person's ability to fulfil those requirements should be assessed on a case-by-case basis to avoid discrimination.
There are some offences that may bar you from a vocation entirely, for example:
- assault, child abuse, or sexual offences may prevent you from getting a government-issued Working with Children card and prevent you from working with children, even as a volunteer.
- espionage offences may prevent you from getting a security clearance and bar you from some, but not all, parts of the defence and government sector
- fraud and theft offences may prevent you from getting a financial services licence
- assault or abuse charges may prevent you from registering with AHPRA as a health professional
- offences involving dishonesty may prevent you becoming a lawyer
However, the law requires that each case be assessed on its merits, and there are no hard-and-fast rules. For example, lawyers have been admitted even when they have had child sex offences or child pornography charges - although it must be said that both were initially refused and only admitted following an appeal to the courts.
For occupations without licencing, employers are allowed to ask for a criminal background check only if they can justify that it might be relevant to the 'inherent requirements'. They can only discriminate on that basis after considering all the relevant factors for the particular individual vis-a-vis the 'inherent requirements', including the nature of the offending, whether there was a conviction or just charges, whether the sentence has been completed, how long ago it was, and the person's subsequent conduct.
Examples of issues that might go to the 'inherent requirements' include:
- Driving offences for a truck driver,
- Theft offences for someone handling cash,
- Fraud offences for a bookkeeper or accountant,
- Assault offences for a security guard,
- Drug offences for a pharmacist or pharmacist's assistant,
- Drug offences for a driver, heavy-machinery operator, or miner,
- etc.
Again, the employer must have a valid reason to ask for a criminal background check and if there are no obvious 'inherent requirements' reasons for doing so, merely asking is unlawful discrimination. Even if there is something relevant in the check, the employer must make a case-by-case assessment.
