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  • Do job applicants have to disclose their criminal records?

    Every organisation must protect their interest, brand or resources by doing a background check or other statutory test for character and behaviours. The most common test most recruiters request is a Criminal record (Police Check certificate).

    On applicants disclosing their Police Check

    There is no general law in Australia that mandates an applicant from disclosing their Police Check record details, even when the facts of the record may affect the willingness of the Employer to grant the application of the person.

    However, the applicant must disclose their records for some instances where;

    • It is stipulated by law, and
    • It is mandatory for the role the person applies for.

    A person seeking a role that requires them to interact with children or the vulnerable must present their records for any related offences. Asides from this, no mandate requires the applicant to disclose any records they are uncomfortable with.

    In practice, it is usually to the detriment of an employee if they do not disclose their Criminal record, especially where the task is based on honesty and good behaviour. And at that point, it is usually difficult for a candidate to know if the criminal record/behaviour is an inherent requirement for the position.

    Is there a link between the criminal records and the role?

    Most employers will request a criminal record or any other form of a background check if it is pertinent to the role they apply for. And in such cases, the applicant will have to disclose such roles (as proven legal) or risk being denied the job.

    What records should the candidate disclose?

    An organisation will usually require a Criminal records certificate of any kind. This document is more authentic and accurate than an oral disclosure by the applicant. When disclosing their records, candidates can include all relevant criminal records regarding the role or task they will be performing.

    However, if they do not feel comfortable disclosing a particular record, they can relate it to the person's limits. They should also do this to understand that every organisation has its internal policies regarding their safety/security. It means the organisation can also refuse their request for the role they apply for if they are dissatisfied by the records the candidate is willing to disclose.

    Disclosing criminal records

    The law allows an applicant to maintain a "right of silence" for Spent records. They do not have to disclose their spent convictions unless it is necessary by law.

    Spent convictions are expunged from a candidate's record after specific periods have elapsed. The convictions that are spent are usually for minor offences covered under the scheme. And once removed from a candidate's record, they should not be coerced to repeat it.

    It is also a violation under the scheme and privacy laws for an organisation to coerce a person to repeat their spent convictions unless pertinent to the matter or required by law.

    How much should a candidate voluntarily disclose?

    The candidate is only mandated to disclose the records pertinent to the role or task required.

    For example, if the position relates to financial roles or occupations, the candidate must reveal financial-related convictions/records. The applicant does not necessarily have to declare their traffic convictions.

    It will also be a violation for an organisation to assess a candidate's Criminal record on records not inherent to the role.

    Where will a candidate have to disclose a spent conviction?

    There are some roles where the candidate must declare their spent convictions, especially connected to the task. A person who works with children will have to declare their spent convictions. It also includes people working in any other sensitive sectors.

    Are all offences Spent?

    Not all offences can be spent under Australian laws. Certain offences are considered too severe or grave to be Ever Spent. For example, a conviction of rape or other sexual offences cannot be Spent in Australia.

    As these offences always show in a Criminal record, the candidate must disclose them if the Employer requests. And if the employee refuses, the Employer is also rightful to decline the employment/position they seek.

    Where can I get a candidate’s criminal records?

    The Police Check certificate or Nationally Coordinated Criminal History Check (NCCHC) is a document that contains all the possible convictions of a candidate under Australian laws. Convictions include the sentences and orders given by a legal court or tribunal.

    Therefore, most companies already make the Police Check certificate a default requirement when an employee seeks a position. However, if you do not wish to present your Criminal record check, you do not have to.

    How should an organisation assess a criminal record check?

    When assessing a candidate, or their records, the organisation should ensure that the metric for assessment is relevant to the inherent requirements for the Job. Dissatisfied candidates can complain to certain agencies if they feel they were cheated.

    Some States and Territories set up special agencies that ensure organisations do not violate the rights of their applicants in any form. Some of these rules are stated in the following;

    • Australian Human Right Commission (AHRC),
    • Equal opportunity commission (E.O.C.),
    • And any other related industrial laws.

    Wrapping Up (Stock v Narrabri Nominees)

    An example is a suit between Stock v Narrabri Nominees, Western Australian Industrial Relations Commission, No.1122 of 1990.

    While Mr Stock was already employed as a tyre fitter in May 1990, the organisation later found some fraudulent convictions against him and dismissed him.

    An industrial Relations Commissioner then stated that the employee was not under any duty to volunteer any fact regarding their antecedents even if they are likely to affect the Employer's willingness to employ them.

    The commissioner ruled against the organisation for unfairly dismissing Mr Stock whilst he was already engaged in employment.

    How can I obtain a Nationally Coordinated Criminal History Check?

    Individuals

    If you are an individual, you can obtain a Nationally Coordinated Criminal History Check online via Australian National Character Check’s application and informed consent form. The results are dispatched via email.

    Business and Enterprise Customers

    Business and Enterprise customers are able to sign up to ANCC’s business portal where they can order, manage, track and view candidates’ police check results on their business portal.

    Organisations will undergo a process of approval prior to being granted access to ANCC’s business portal for the purpose of criminal history checks.

    ANCC sends an invite to the applicant to complete their background check online and handles the application and informed consent form. Contact ANCC’s business and enterprise partnerships team today to enquire about setting up a business portal for your organisation.

    Source

    Australian Human Rights Commission - Human Rights: On the record: Recruitment (Chapter 5) - https://humanrights.gov.au/our-work/human-rights-record-recruitment-chapter-5

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