When undertaking a Nationally Coordinated Criminal History Check (NCCHC) police check in Australia as a precondition of employment, you might come across candidates with a criminal record. While discovering a criminal record during the hiring process police check can be concerning, it’s essential to handle this situation with care, ensuring that the decision making process remains fair, legal, and consistent with your organisation’s policies.
In this blog post, we’ll guide you through the steps to take when a candidate has a criminal record after a NCCHC police check, offering insights on how to balance the need for a safe workplace and community with fair treatment of candidates.
Let’s explore what to do next.
Understand the Legal Framework Governing a Criminal Record
First and foremost, it’s essential to be aware of the legal framework surrounding the use of a criminal record from a police check in hiring decisions.
In Australia, there are several key regulations that govern how criminal history can be used during the recruitment process:
- The Fair Work Act 2009 (Cth): (“Fair Work Act”), Fair Work Ombudsman and Fair Work Commission sets the framework for fair treatment in the workplace in Australia, including during recruitment.
- Anti-Discrimination Laws: Both federal and state-level anti-discrimination laws prevent discrimination based on a criminal record unless it has a significant bearing on the position being applied for. This includes ensuring that the candidate’s criminal record does not disproportionately affect protected groups (such as Indigenous Australians or individuals with disabilities).
- Spent Convictions Legislation: Under Australian law, certain convictions may become “spent” after a specified period. 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 (commonly called a “police check”), the National Police Checking Service and associated police jurisdictions, won’t release information about a spent conviction unless there is an exemption under relevant spent conviction legislation or information release policies related to the purpose of the check.
Assess the Relevance of the Criminal Record to the Role
Not all criminal records are equally relevant to every job. The next step in addressing a candidate’s criminal record is to assess whether it impacts their ability to perform the inherent duties of the role.
Factors to Consider When Assessing a Criminal Record
- Nature of the Offence: Is the offence directly related to the responsibilities of the position? For example, a conviction for fraud may be a concern for roles involving financial management, while a minor traffic violation may have no bearing on the role.
- Time Passed Since the Offence: A conviction that occurred many years ago may be less relevant, especially if the individual has demonstrated rehabilitation. A criminal record that is recent, however, might be more pertinent, especially in positions that require high levels of trust, responsibility or safety.
- Job-Specific Requirements: In some industries (e.g., healthcare, childcare, finance), certain criminal convictions may automatically disqualify a candidate, particularly if they involve serious crimes such as violence or fraud.
By focusing on the specific responsibilities and requirements of the role, you can make a more informed decision about whether the criminal record should impact the hiring process.
Provide the Candidate an Opportunity to Dispute and Explain the Criminal Record
It’s important to remember that a criminal record uncovered through a police check may not automatically disqualify a candidate or applicant from a job. Before making any decisions, you should give the candidate an opportunity to dispute the record if they claim that it’s not them, or shouldn’t have been released; and explain the circumstances surrounding their criminal record. This is a fair and transparent way to handle the situation.
Ask the candidate to provide context around:
- Extenuating circumstances surrounding the offence;
- The nature of the offence and its relevance to the role;
- How much time has passed since the conviction; and
- Any steps taken towards rehabilitation (e.g., completing a rehabilitation program, community service, or other efforts to address past behaviours).
This conversation helps to ensure that the decision is made fairly, taking into account the candidate’s actions since the offence/conviction and their ability to contribute to the role on an ongoing basis.
Make an Informed Decision about a Criminal Record
After gathering all the necessary information, it’s time to make an informed decision about whether to proceed with the candidate.
This decision should be based on:
- The criminal record’s relevance to the role;
- Other background checks undertaken as part of the recruitment process;
- The candidate’s explanation and the steps they have taken to address past behaviour; and
- Your company’s policies on hiring individuals with a criminal record and any industry-specific requirements.
Be sure that your decision making process is consistent across all candidates and that you are not making a discriminatory or arbitrary decision based on their criminal record alone.
Keep the Candidate Informed of Your Decision
Throughout the process, keep the candidate informed about the status of their application. If a criminal record uncovered in a police check affects the hiring decision, explain the reasoning clearly and professionally. Transparency is key to maintaining trust and ensuring a respectful relationship with the candidate, regardless of the outcome.
If the candidate is rejected based on their criminal record, be sure to follow up with a written explanation. If the decision is made not to consider the criminal record in the hiring decision, let the candidate know that their application will proceed based on other factors and suitability for the role.
Review Your Background Check Policies Regularly
It’s essential to regularly review your company’s hiring and background check policies to ensure they align with current laws and best practices. As societal attitudes toward criminal records and police checks evolve, as well as the legal landscape, your hiring practices should adapt to remain fair and compliant.
Make sure your policies take into account the possibility of candidates having a criminal record and outline clear, fair processes for handling this in the recruitment and hiring stages. Regular training for HR and hiring managers will also ensure that these policies are properly understood and implemented.
Next Steps for Hiring
Handling a candidate’s criminal history after a Nationally Coordinated Criminal History Check (NCCHC) police check requires sensitivity, fairness, and a commitment to compliance with Australian laws. By assessing the relevance of the criminal record to the role, giving candidates a chance to explain, and following transparent, legally compliant processes, employers can make informed and fair hiring decisions.
As you move forward with background checks, remember that each decision should be based on the individual circumstances, always aiming to foster a diverse, inclusive, and equitable workplace.
