Background check laws if you are working with children
It is important to remember that for some jobs, a criminal record will be an irrelevant consideration.
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An employer does not need to request criminal record information from job applicants if it is irrelevant to the inherent requirements of these jobs. Employers are therefore strongly encouraged to read and consider Section 4 on assessing the inherent requirements of the job before requesting information from job applicants. Employers should create an environment which will encourage an open and honest exchange of information about a criminal record between an employer and job applicant or employee.
In some circumstances there is a clear legal requirement that an employee or job applicant should not have a certain criminal record. An employer may be obliged to ask a job applicant for criminal record details in these circumstances. Employers are, however, required to ask an employee to consent to a police check. However, employers should only ask about a criminal record where there is a connection between the inherent requirements of a particular job and a criminal record.
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This principle has been put into legislation in the Northern Territory where requesting information on which unlawful discrimination may be based is not permitted. In Hosking v Fraser , the Northern Territory Anti-Discrimination Commission found that an employment agency should not have sought criminal record information from all applicants for a nursing position because it was not relevant to the inherent requirements of the position.
The position was for a remote area nurse situated in an Aboriginal community.
Ms Hosking claimed she was asked to consent to a police history check and that, if she did not, her application would not be put on the database of the agency to be forwarded to the employer. The recruitment agency claimed that it was their role to screen out the criminal, inept and incompetent elements so that they do not manage to gain positions of trust. They claimed that the information requested of applicants was essential in the context of Aboriginal customs and realities that these disadvantaged people face on a daily basis. Recruitment forms, and the information they elicit, must be relevant to the duties to be performed, couched in non-discriminatory terms, and based on non-discriminatory practices.
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As a result, the NT Commission found that the agency sought unnecessary information on which discrimination may be based, contrary to the NT Anti-Discrimination Act. In addition, an employer should be aware that federal and state privacy laws specify that personal information may only be collected to the extent necessary for a purpose directly related to a function or activity of the collector. Although there are exceptions to privacy laws, for example for small business, privacy laws generally prohibit the collection and use of personal information such as criminal records from job applicants in any unnecessary and excessive way.
See Section 3. If an employer asks a job applicant personal questions which are irrelevant to the job, they run the risk of either breaching privacy and anti-discrimination laws, or setting in train misunderstandings which could lead to problems down the track. Employers should only ask job applicants and employees to disclose specific criminal record information if they have identified that certain criminal convictions or offences are relevant to the inherent requirements of the job.
Mr Stock was employed as a tyre fitter in May He was not asked about his criminal record in his application. When launching the business the owner placed an advertisement in a local newspaper, including a photograph of the staff. The owner received several phone calls from people who had seen the advertisement and were concerned that he had employed Mr Stock who had been convicted of stealing, amongst other dishonesty offences. The owner dismissed Mr Stock.
If there is a requirement under legislation to disclose a criminal record, for example for working with children, then a job applicant must disclose their record. Otherwise, there is no absolute obligation for a job applicant to answer a question about their criminal record even when asked. However, if an employer asks a reasonable question — for example, a specific question about a criminal history relevant to the job - an employer may be entitled to refuse to hire a person on the basis of failure to answer that reasonable question.
Even so, this may still give rise to a complaint of imputed discrimination against the employer if a criminal record was irrelevant to the position. Sometimes a job applicant thinks that there is no link between the position for which they are applying and their criminal record. In principle a person may be entitled to refuse to answer in this situation.
Summary of complaint: The complainant who obtained a position and commenced training as a security officer in a detention centre in South Australia alleged that he was dismissed from his position due to his criminal record. The application form asked whether the applicant had ever been charged, had pleaded guilty, been convicted of an offence or had an offence proved.
The complainant had a conviction for possession of marijuana 15 years earlier, which he did not declare as he did not think that it was relevant. Response: The employer argued that the complainant failed to gain employment because he provided false information and because he failed to satisfy the inherent requirements of the position due to his criminal record. Outcome: The Commission declined the complaint on the basis that it was lacking in substance. The Commission found that the decision not to employ the complainant was made because of his failure to truthfully answer the question, and in any event, it was an inherent requirement of the particular position to have no criminal record.
As the last example illustrates, some employers decide not to employ an applicant who has failed to disclose a criminal record, not because of the nature of the record, but because an inherent requirement of the job is honesty and trustworthiness, and the failure to make a disclosure is treated as dishonesty. The Commission receives a number of complaints by persons who allege they have been not employed or later dismissed on the basis of criminal record, while the respondent has argued that the reason for the dismissal was dishonesty in failing to disclose the criminal record.
An employer could explain to job applicants, if briefly, why certain convictions are relevant to the job and that a failure to make a full and frank disclosure may be treated as evidence of untrustworthiness. This helps to minimise the possibility of disagreements which could lead to claims of discrimination. If a criminal record is relevant to a position, and an employee decides to volunteer information or is asked, he or she still may not have to disclose the complete criminal record.
Exactly what information they are required to disclose depends on a variety of circumstances. Generally, where there has been a finding of guilt but no conviction is recorded for example when the offender is placed on a good behaviour bond but no conviction is recorded , and depending on what information is requested from the employer, a job applicant may not need to disclose this guilty finding.
In addition, in most cases there is no requirement to disclose a spent conviction. However, some kinds of employment, for example employment where people will be working with children, are exempt from spent convictions legislation. Further, there are some offences that never become spent, for example sex offences in some jurisdictions.
Oral and written questions made during the recruitment process should not require a job applicant to disclose their spent convictions unless exemptions to spent convictions laws apply. If an employer decides that a criminal record is relevant to a particular job, an employer should state this requirement clearly in job advertisements, information sent out to job applicants and recruitment briefs to agencies.
Even if a criminal record is relevant, the advertisement and job information should also state, wherever possible, that the employer does not automatically bar people with a criminal record from applying unless there is a particular requirement to do so under law.
This encourages an open exchange of information at the early stages of the recruitment process rather than down the track. It also means that an applicant can decide whether or not to apply for the position. If an employer provides job information to job applicants, it may be useful for an employer to include a brief explanation of why certain offences may be relevant to the job. Although the AHRC Act does not specifically prohibit discriminatory advertising with regard to criminal records, it is possible that a complaint of discrimination could be lodged because of a job advertisement.
For example, a job advertisement that stated that job applicants, who are otherwise qualified, should not have a criminal record may constitute an impairment of equality of opportunity if it prevented a person from making a job application. All final applicants for this position will be asked to consent to a criminal record check. Please note that people with criminal records are not automatically barred from applying for this position.
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Each application will be considered on its merits. An advertisement could also state that more information can be sought on a confidential basis. In this case, a separate contact name should be given to ensure confidentiality. This contact person should not be involved in the selection process. If an employer has an exemption from spent convictions laws, this should also be clearly stated on the advertisement.
Please note that this position is exempt from the operation of spent convictions laws and all offences must be declared.
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However, all applications will be considered on their merits. Advertisements and job information for a vacant position should clearly state whether a criminal record check is a requirement of the position. If so, the material should also state that people with criminal records will not be automatically barred from applying unless there is a particular requirement under law.
For most jobs, a criminal record check should be requested only from short-listed applicants or from those invited to interview. This minimises:. All applicants should be warned that their employment is dependent on an assessment of the results of their criminal record check. This should be stated clearly on the job application form and explained carefully in interview.
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Ideally, an employer should not make a final job offer before receiving the results of a police check. If an employee commences employment and training, and a criminal record comes back with a relevant conviction, it can cause undue distress for employees and wasted employer resources. However, police checks may take a few days, or even weeks, to return to the employer. This is a problem when a position needs to be filled quickly.
As a result, in certain cases an employer may need to start the process of obtaining criminal record information earlier in the process. This would only be the case where there was an urgent need to employ someone. If an employer decides to hire a person prior to the criminal record check, the employer should take steps to clearly inform the new employee that their employment is conditional.
This is the case even if the new employee has not disclosed any convictions prior to a police check. Australian police agencies conduct a national police check on behalf of individuals and organisations. Individuals and organisations who request a police check from an Australian police agency will be issued with a National Police Certificate.