You’ve run a background check on a prospective employee and found something! What do you do now? Or rather, what can you do now?
Before you consider a prospective employee’s criminal history or other background check findings, it’s crucial to consider your obligations under Australian legislation.
Running a background check, especially when it involves criminal history and other sensitive information like a police check, requires careful attention to legal and ethical guidelines. Employers must ensure they comply with relevant privacy, anti-discrimination, and labour laws to avoid legal, reputational, and financial risks to their organisation and to ensure fair treatment of all candidates and employees.
Let’s explore some of the the key legislation you need to consider when running a background check in Australia.
Privacy Act 1988
First and foremost, the Privacy Act 1988 (Cth) (“Privacy Act”) is one of the most important pieces of legislation when it comes to handling personal and sensitive information, including criminal history data.
Under this Act, businesses, including any third parties they engage to administer their background checking program, are required to manage and protect personal information responsibly and in line with the Australian Privacy Principles.
This includes:
- Management of personal information: Ensure you (and any third parties appointed by you) have a clearly documented and up to date Privacy Policy that is readily available to employees and applicants.
- Collecting only necessary information: You must ensure that any criminal history or other personal information you collect is necessary for the role or purpose of the check. For example, if the job doesn’t involve financial management or access to company assets, checking a candidate’s financial probity may not be appropriate.
- Notification of the collection of information and obtaining consent: Before running a Nationally Coordinated Criminal History Check (police check) or any background check, you must seek written and freely given consent from the individual. The person undergoing the check should understand exactly what information will be collected, how it will be collected and stored and the purposes for which information is collected, held, used, and disclosed.
- Storing and protecting information: Any data collected from the background check must be kept secure and should not be disclosed to third parties unless required by law or with explicit consent. Excluding where an exception applies, such as retaining information for a Nationally Coordinated Criminal History Check (otherwise known as a police check), when an organisation no longer needs personal information for the purpose for which it was used or disclosed, reasonable steps must be taken to destroy the information or ensure that it’s de-identified.
- Access and correction of information: An organisation that collects and holds personal information about an individual must, on request, give that individual access to the information (except where special circumstances apply). Additionally, you must take reasonable steps to correct personal information to ensure that it’s accurate, up-to-date, complete, relevant, and not misleading.
Failure to comply with the Privacy Act can result in fines, reputational damage, and potential lawsuits from candidates who feel their personal information was mishandled.
Australian Labour Laws
The Fair Work Act 2009 (Cth) (“Fair Work Act”), Fair Work Ombudsman and Fair Work Commission set the framework for fair treatment in the workplace in Australia, including during recruitment. This legislation and government bodies work in conjunction with other relevant state, territory, and federal departments to administer and educate about workplace laws.
When it comes to background checks, it’s essential to ensure that the information obtained is not used in a discriminatory and unlawful manner manner.
Employers should consider the following:
- Discriminatory practices: Employers should be careful to automatically reject a candidate solely based on a criminal history or “failed” background check. Many factors should be considered, such as whether the adverse information identified is relevant to the role, ensuring that your organisation has a documented process and policy to support the decision making process.
- Fair process: If you do decide to take action based on criminal history information or an adverse background check/police check, it’s vital to ensure that the candidate has an opportunity to dispute and explain the circumstances surrounding the findings. Decisions should be made on a case by case basis, with consideration of the circumstances surrounding the offence or adverse information, and the time elapsed since the time it occurred.
Anti-Discrimination Legislation
Under Australia’s anti-discrimination laws, it is unlawful to discriminate against a job candidate or employee on the basis of criminal history in some cases. However, where the criminal history means that the individual is unable to perform the inherent requirements of the role, it is not considered unlawful.
The Equal Opportunity Act 2010 (VIC) and other state and federal laws, such as the Anti-Discrimination Act 1977 (NSW) and the Disability Discrimination Act 1992 (Cth), all protect individuals from unfair treatment based on certain characteristics, including prior criminal convictions.
Employers must be mindful of:
- Relevant criminal history: In most cases, a criminal record should not automatically disqualify an applicant from a job unless the offence is directly related to the role.
- Spent convictions: Some offences, particularly minor ones, may become “spent” after a certain period, meaning the individual is no longer required to disclose the conviction. Employers cannot ask candidates to disclose spent convictions unless the role is one that requires such disclosure..
- Disability discrimination: If the criminal conviction is linked to a mental health issue, substance abuse, or another disability, the employer may be required to provide reasonable adjustments or support.
Spent Convictions Legislation
In Australia, spent convictions legislation limits the use and disclosure of older, less serious convictions and findings of guilt. Each Australian police jurisdiction has its own spent conviction legislation and information release policies for police checks.
Spent convictions are not required to be disclosed and cannot be considered when making hiring decisions, except where there’s a legal requirement for disclosure. When undertaking a Nationally Coordinated Criminal History Check or police check, the National Police Checking Service and associated police jurisdictions, won’t release information about a spent conviction unless there’s an exemption under relevant spent conviction legislation or information release policies related to the purpose of the check.
It’s essential for employers to be familiar with the spent convictions laws in their jurisdiction to ensure they comply with these rules during the recruitment process.
Workplace Health and Safety Legislation
Under Australia’s Workplace Health and Safety (WHS) legislation (as it may vary on a state by state basis), employers have a duty to provide a safe working environment for employees and the public. In some industries, such as healthcare, education and finance, ensuring that employees don’t pose a risk to the safety of others is crucial. If a Nationally Coordinated Criminal History Check or other background check reveals an offence that’s directly relevant to the person’s ability to perform their job safely (for example, a conviction for assault in a role involving close contact with vulnerable individuals), this may influence employment decisions.
Employers must balance their legal obligation to create a safe environment with the need to provide fair opportunities for candidates who may have made mistakes in the past and demonstrated reform.
Industrial Relations and Trade Union Laws
Enterprise or industrial agreements may have specific clauses about the recruitment process, including background checks and police checks. Employers must be aware of their obligations under these agreements, in conjunction with their obligations under the Fair Work Act to ensure they aren’t in breach of any rights granted to employees or prospective employees in these agreements.
Industry-Specific Background Check Legislation
Some employers, licensing bodies, and regulators are legally required to undertake background checks on new and existing employees. Sometimes these background checks include checking for criminal records in Australia and overseas.
Employers, licensing bodies, and regulators must meet the requirements of these laws. However, employers should understand the exact requirements of the legislation as it applies to them, as it may not be clear whether an individual can be excluded in its entirety on the basis of criminal record alone.
Undertaking Police Checks in Australia
Running a criminal background check in Australia is a serious responsibility, and employers must be mindful of their legal obligations under various pieces of legislation. While criminal history checks, also called police checks, are an important tool for ensuring safety and suitability for roles, employers must ensure they are used fairly and in compliance with privacy, anti-discrimination, and industrial relations laws.
If you discover a criminal history during the police check process, take the time to carefully assess the context, consider the relevance of the offence to the job, and provide candidates with an opportunity to explain their circumstances. Ensuring that you follow the legal frameworks and best practices not only protects your business and the community from legal consequences but also helps to foster a fair and inclusive hiring process.
By staying informed about the relevant legislation, you can make confident and compliant decisions when conducting background checks, ensuring your recruitment practices are both legally sound and ethically responsible.
