By Sonia Hickey
So, you’re a small biz start up. This is your grand idea. The culmination of years of planning, commitment, maybe even your life savings, and you’re humming along nicely. Growing in fact. Isn’t that the goal? Then sooner or later you realise you need to employ someone.
How do you know they’re legit? A CV, reference and peeking at their social media profile can garner a wealth of information, but what if you want to check a criminal record?
It’s perfectly legitimate for any employer to expect that a job applicant has the responsibility to disclose their criminal record in response to a request.
But on the other hand, people with criminal records are very aware they may be judged adversely, perhaps even discriminated against if they fess up to an ancient drug charge, petty theft, or some other misdemeanour they’ve committed in the past. And a prospective employee does not have to volunteer any information about his or her prior record, even if those facts are likely to affect the employer’s willingness to employ him or her.
Is a criminal record check relevant?
In most jobs, a criminal record will be an irrelevant consideration. However, in others, the nature of the role might require it, and if for example, a job requires regular international travel then a criminal record can inhibit a person’s ability to do so.
So where do you, as an employer stand? What are your rights? And what are the rights of your staff, or your potential hires?
The Human Rights Commission says that as a general rule, if the role you’re filling has a clear legal requirement for the employee or job applicant to have a criminal record, then the role should be advertised as such, 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 way any potential applicant can decide from the outset, whether or not to pursue the job, knowing that information will be asked for, and checked. Employers seeking information about criminal history should ask for disclosure on written applications and can then have an open discussion with candidates. If a police check is required, then employers are required to ask an employee to consent before it is done.
There are a number of interesting cases on the Human Rights Commission website, one in which the Industrial Relations commissions dismissed a complaint from a security officer at a detention centre. He had commenced training and was dismissed from the position based on his criminal record. He had been charged, pleaded guilty and been convicted of possession of marijuana many years earlier, which he did not declare as he did not think that it was relevant.
His employment was conditional on a criminal record check, which revealed the conviction.
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.
It can be a complex area. And on top of employment legislation there are also Federal and State privacy laws to consider that state personal information may only be collected to the extent necessary for a purpose directly related to a function or activity of the collector. It may be that the collection of a person’s entire criminal record is excessive for employment purposes.
So, for example if someone has, for example had a finding of guilt for drink driving, but no conviction is recorded, then depending on what information is requested from the employer, a job applicant may not need to disclose this guilty finding. The situation might change if an employer specifically asks about ‘findings of guilt, with or without conviction’.
Australian police agencies can conduct a national police check on behalf of individuals and organisations. And, as mentioned previously, all police checks must be undertaken with the written consent of the person being checked, unless the check is mandated by relevant legislation.
- court appearances
- court convictions, including any penalty or sentence
- findings of guilt with no conviction
- good behaviour bonds or other court orders
- matters awaiting court hearing.
- It is not possible to limit the information requested to specific offences.
Spent convictions are not usually included
What is a spent conviction?
A spent conviction basically limits the disclosure of previous criminal convictions. This means that if someone has committed a crime in the past, it will no longer show up on a criminal record. There are exceptions to spent convictions. Federal spent convictions are covered in the Crimes Act 1914, a Commonwealth Act. Section 85ZM outlines when a conviction becomes ‘spent’ if:
- a person was not sentenced to imprisonment,
- was sentenced to imprisonment for less than 30 months and the waiting period for the offence has expired.
The waiting period is 10 years since the date of conviction, or five years for juvenile offenders.
Working with children.
Working with Children checks can disclose a broader range of matters than a standard NPC.
For this reason, most relevant organisations will find a Working With Children check sufficient for the purposes of engaging in “child-related work”.
Criminal record checks are becoming increasingly common
While many employers across Australia now require a criminal record check, and many job applicants expect them to be done as part of the process, if you’re a small business recruiting for the first time, you might be concerned about following due process with potential applicants. With more than 80% of respondents to the 2017 Employsure Workplace Index admitting they find the Fair Work Act confusing, you’re not alone.
However, if you are upfront in all formal communications about the role you’re filling, and the reasons why it is required, it should present no problems. Although it’s best to get appropriate legal advice and put the right policies and procedures in place for your particular company. It’s also important to ensure that if you decide not to employ someone with a criminal conviction, you’re doing so on the basis of sound, reasonable judgement about the role in question, and not out of prejudice or discrimination.
Sonia Hickey is a freelance writer, magazine journalist and owner of ‘Woman with Words’. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team.