What does the law say when it comes to employers viewing criminal records?

What does the law say when it comes to employers viewing criminal records?

Recent data from the National Police Checking Service reveals it facilitates over five million police checks annually, averaging more than 7,000 referrals to police every day. A significant proportion of these checks are requested for recruitment and job applications where roles often require a clean criminal history.

The recruitment process can raise questions about whether a potential employer might request access to view criminal records. While this can be a daunting prospect for both employees and employers, it’s a common step taken to meet regulatory and safety requirements.

Understanding the rights and responsibilities of both parties in these situations is crucial. Here, our experts explain the ins and outs of background checks, the rules surrounding them, and the rights of employees and employers, and highlight the importance of compliant processes to ensure fairness and transparency.

What is a National Police Check?

Did you know that employment background checks can be conducted on Australian citizens or anyone residing within Australia?

A National Police Check is a summary of any person’s police history information and is treated as a point in time. This means results from the criminal history check are accurate only at the time that the check is completed. The check covers a host of information, including:

• Court convictions;
• Findings of guilt without conviction;
• Charges;
• Matters awaiting hearing;
• Driving offences where guilt has been found in court; and
• Other court orders.

However, police checks don’t include spent convictions, which are convictions at least 10 years old in the case of adults and anywhere from three to five years for juveniles. Depending on the severity of the conviction, once spent they’re no longer required to be legally disclosed.

When can an employer request a pre-employment screening in Australia?

The requirement for a police check for employment depends on the industry or job being applied for. Certain industries have laws surrounding mandatory police checks for employees. In a general sense, these industries are:

• Security services
• Education
• Mining and construction
• Finance and legal services
• Real estate

Within these industries, employers must ensure that workers have completed police checks according to background check regulations. Outside these industries, police checks are typically required by choice and not law. Regardless of necessity, though, if a role requires a police check to be completed, the employer should state the requirement clearly in the job ad and also in the information sent to recruitment agencies. In addition, this type of pre-employment background check cannot be completed by an employer without the written consent of the potential or current employee first.

Are there any protections for employees?

Employers should be aware that in certain states, potential candidates are protected from discrimination based on prior criminal history, depending on the nature and relation of the criminal record to the role being applied for. However, an employer can refuse employment to a candidate whom they deem has a criminal record that is relevant to the role. The Australian Human Rights Commission Act 1986 states that discrimination isn’t classified as discrimination if an employer denies a potential employee due to a prior criminal record inhibiting the person from performing the ‘inherent requirements’ of the role.

In summary, criminal record checks for employment are essential to the application process. Both employers and potential employees hold rights during the process to protect themselves from negative repercussions. These extensive employee background verifications help ensure that the correct applicants are selected in line with industry standards and employment law.

How Citation HR can help

Running a business is hard work and there’s a lot to think about – from growth and profitability, marketing, and customer service to people management and employer obligations – most business owners have their hands full. Citation HR makes managing your HR easy by providing businesses of all sizes with outsourced HR solutions. We aim to remove the stress of people management from you and leave you with the time and energy you need to focus on your main concern – running your business.

From the 24/7 HR Advice Line and our HR Software to the hundreds of legal documents, templates and checklists, our HRIS software and services help businesses mitigate workplace risks and ensure they’re compliant with Australian employment law.

If this article has raised any concerns or questions about conducting police checks or you have another workplace matter you need support with, contact our team at Citation HR via the 24/7 HR Advice Line.

Not a Citation HR client? To learn more about how Citation HR can support your business and streamline its people management processes, please reach out to our friendly team for a confidential, no-obligation chat here.

About our author

Kevin Johnson is a Workplace Relations Advisor at Citation HR and assists various clients via the HR Advice Line.