The practice of requesting or conducting a police check in Australia is becoming increasingly common, with employers seeking to mitigate the risk of hiring the ‘wrong person’ for the job.

Am I Allowed To Conduct or Request A Police Check?

Essentially yes, it is legal and, in some instances, mandatory to do a criminal background check on current and prospective employees in Australia. However, where it is not mandatory, employers should consider the following information when deciding whether or not to proceed with one.

Anti-Discrimination/Human Rights Legislation

Except for Tasmania and the Northern Territory, there is no specific anti-discrimination/human rights legislation that deals solely with discrimination based on criminal convictions. Notwithstanding this, the Australian Human Rights Commission (“AHRC”) has the power to investigate “any act or practice, including any systemic practice that may constitute discrimination and where appropriate try to resolve the complaint of discrimination by conciliation”.

This means if an employee, whether prospective or current, makes a complaint to the AHRC, it can investigate the employer’s conduct and request the employer attend conciliation. While the AHRC can investigate a complaint made, the chances of that occurring are likely to be small and even where it does occur, the AHRC can only make non-binding recommendations the employer can choose whether or not to adopt.

Requesting information which could be used for discriminatory purposes

Another potential issue that may arise (though only in certain states and territories such as  VIC, ACT, NT, QLD and TAS) is that requesting or conducting a police check may be considered requesting a person to supply information which ‘could be used to form the basis of discrimination’ against the person providing the information. If an employee were to make such a complaint, the employer would bear the burden of proving before the relevant anti-discrimination tribunal or court the police check was not used for a discriminatory purpose.

Indirect discrimination

A final potential issue that might arise by conducting police checks is where the practice might be considered indirect discrimination against a group with a protected attribute (i.e. it disproportionately disadvantages those of a certain race, sex, etc.).

While it is important that employers are able to minimise risks associated with hiring employees who have been convicted for ‘dishonesty’ based offences, this need must be tempered by considering:

• the seniority of the employee in question (i.e. are they part time admin assistant or the CFO);
• whether the employee has access to sensitive information or vulnerable people (i.e. children or the elderly); and
• the potential for requesting an employee undergo a police check to be considered discriminatory.

Privacy Legislation

In addition to the anti-discrimination legislation in Australia, there are also privacy principles which govern how personal information is collected/handled. These principles apply to organisations who had an annual turnover of above $3mil for the previous financial year. If it is likely these privacy principles apply to your organisation, any personal information uncovered by conducting a police check will require you to take additional steps to ensure it is protected. Please visit the Office of the Australian Information Commissioner for guidance and training resources related to the privacy principles and the handling personal information generally.

How to Conduct Police Checks

Several organisations provide these services, including the police force of each State and Territory. When deciding which organisation to choose, employers should consider:

• How many police checks they intend to undertake; and
• Whether they want to organise the police check or have employees obtain them at their own cost as a pre-requisite to being employed.

To assist employers in making this decision, please visit Intercheck Australia who have an excellent ‘best practice guide’.  Also, please refer to this list of all the organisations which are accredited by the Australian Criminal Intelligence Commission to perform police checks in Australia, so that employers can select the solution the best suits them.

Need Specialist Help?

Managing a workforce can be difficult enough without taking into consideration the different rights each employee and prospective employee has. The best way to manage all of these competing priorities is to understand how each of them can impact your business! We can assist you to gain this understanding through tailored training programs and providing comprehensive information packs.

For specialist assistance during these challenging times, contact one of our experienced consultants on 0447 336 280 or nathaniel@workplacewizards.com.au.