Police checks and results. How should you proceed in Australia?

Many Australian companies have introduced mandatory police checks for new employees in recent years, as is the practice in many other countries as well like the US where background checks are common. Still, it is a very tricky issue, especially when this type of screening is not mandated by law. How do you use police checks while keeping within the law?

Always ask for informed consent.

That’s the number one rule. Just because you can easily run a background check on someone doesn’t mean you’re allowed to. Lately, more and more Australian companies have been using online character check agencies to routinely run national police checks on job applicants. It’s fast and easy, all you have to do is upload the identity information and a photo of your candidate, and you can have a 100% valid police check sent to your email. However, you should always have the individual’s written consent concerned if you don’t want to get in trouble with the law.

What to do if a candidate has a criminal record?

You need to keep in mind that should you discover a certain candidate has a criminal record, you might not be within your rights to turn down their application. As an employer, you can use the existing criminal record as a reason to turn down an application only if the offenses committed by that person are in any way relevant to the job requirements.

According to federal regulations, an employer should exercise “reasonable discretion against prospective employees if their criminal record is relevant to the position being applied for.”

It is also unlawful to offer someone conditional employment and then fire them when you get the background check results if the offenses on their record have nothing to do with the position they occupy in your organization. 

How do you determine what’s relevant and what’s not

For instance, when a candidate has a conviction for drunk-driving, this is irrelevant if they are applying for a position as a sales assistant or a cook. However, if the job in question is that of a delivery truck driver, a drunk driving conviction is reason enough to pass on that candidate. Such situations need to be handled on a case-by-case basis. 

Denying someone a job based on their criminal record can result in a discrimination lawsuit, especially in Tasmania and the Northern Territory, where strict anti-discrimination laws are in place.

What are the risks of hiring someone with a criminal record?

For one thing, Australian anti-discrimination laws are meant to give these people a chance to gain meaningful employment and lead an honest life after paying their debt to society with the time served behind bars. 

To determine if a former convict is trusted, business owners and their HR managers are encouraged to use their judgment. A job applicant who is open about his criminal past and can prove he has changed should be given a chance, much more than a candidate whose criminal record is only brought to light by a background check.

Common sense tells us that a new employee with a criminal record is less likely to commit a new offense, at least on the job, if they are aware that the management knows about their past. 

Suppose the worker has access to vulnerable people like children and the elderly. In that case, there are other government-mandated checks in Australia, like working with children check or working with vulnerable people registration, which must be undertaken. These kinds of checks dive into more details for peoples’ criminal history and consider “Spent Convictions.” It is common sense that if a candidate fails their working with children check, they should not be employed in any role where they have direct or indirect access to children. Suppose they fail to work with vulnerable people registration. In that case, they should not have any access (direct or indirect) with vulnerable persons like the elderly, the poor, victims of abuse or discrimination, pregnant women, persons with a disability, etc.

To sum it up, whenever criminal records are concerned, employers should exercise extreme caution and go out of their way to stay within the law.