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Home Blog National Privacy Principles Relevant to Criminal Record Information

National Privacy Principles Relevant to Criminal Record Information

Most organisations require a Criminal record check from the candidates they employ for various reasons.

However, criminal record information should be collected, used and disclosed in accordance with the Privacy Act 1988 (Privacy Act).

Requesting a Criminal Record Check

An employer can request the criminal records of a candidate that they shortlisted for employment. This does not go against any legislation in Australia nor employment acts. In some circumstances, the Australian government mandates that employers who recruit into sensitive positions request for a Police Check (for example, checks for the purpose of aged care employment).

However, while dealing with criminal records of candidates, employers must abide by the Privacy Act.

What are the National Privacy Principles employers must follow?

  1. Collect only relevant records

Any organisation covered under the Act must only request or collect the necessary record information. It means the criminal record they demand or request should be related to the role or job they offer.

Where the record will not impact the role/job, it may be improper for the employer to make it mandatory.


  1. Using, interpreting and disclosing the Records

When using or disclosing the records information of the candidate, the employer should use them as it relates to the role or job the person applied for. It may be a breach of privacy if the employer applied or used the Criminal records information outside of the reason they originally specified.

When disclosing the criminal records, it must strictly be with the informed consent and approval of the candidate. An example could be where the employer needs to disclose the personal information to protect their safety or health at work. It is also acceptable where the disclosure is necessary to a part of an investigation or reporting an unlawful activity as per the law.


  1. The veracity of the Criminal record and data quality

The employer is mandated by the Act to ensure that all information in the criminal records is not just correct, but of the right quality, up-to-date, and sufficient for the purpose.


  1. Securing and disposing of records

When an applicant trusts you with their records, take all intentional steps to ensure that their records are safe and free from public servers.

Also, when you are done with a Criminal record/other personal information, especially when the applicant does not get the job, employers should know how to dispose of the record information without compromise.

Securing a candidate’s records is very important, as otherwise may lead to serious sanctions.

Australian National Character Check’s business portal for business and enterprise users assists employers and decision makers to comply with the secure storage and disposal requirements of criminal history check information.


  1. Transparency and Integrity

When an employer advertises for a vacant position, they must outline and explain all the needed requirements. If a Criminal record is one of them, they must explain to the candidates;

Furthermore, the employer/organisation must also abide by all the policies it states.


  1. Access to records and corrections if required

Where an organisation obtains the criminal record on behalf of the person (with their informed consent) or has received other records, they should share them with the candidate. Although the organisation may not be mandated to share where some exceptions under the NPP6 apply.

If the individual has a problem with any of the records or feels they are wrong, they can attach a statement to the issuing agency about this report.

It is unfair to assess a person based on a record they did not view or know about. Usually, this can lead to grounds for a case of discrimination.


  1. Transborder Data

It is important to note that NPP 9 does not allow an organisation from disclosing personal information to another person that is based in a foreign country which is not subject to information privacy rules that are comparable with Australia's Privacy Act. There may be exceptions where the organisation has the individual's consent, or in other limited circumstances as permitted by law.


  1. Sensitive information

For all organizations under the Privacy Act and other purposes of the NPP, criminal record information is sensitive information. However, some exemptions are specified under the National Privacy Principle 10.1.

Under NPP 10, it is illegal to collect sensitive information of a person if they did not consent to such checks.

What is the Privacy Act?

The disclosure/handling and use of criminal records must be done following the stipulations under the Privacy Act. Under privacy laws, a person's criminal record is treated as sensitive information. Additional protections are given to sensitive information under these laws.

Even where exemptions may occur depending on the sector and the type of record, it is best practice for employers to follow privacy principles as closely as possible when dealing with information relating to a person’s criminal record.

The privacy laws cover all areas where a Criminal Record is used in the Commonwealth of Australia.

Australian National Character Check’s business portal for Criminal Record Checks

The ANCC® business portal assists approved business and enterprise customers of all sizes to comply with the privacy principles relating to criminal record checks. Data is stored on secure servers within Australia. There are multiple layers of information security controls including user access controls.

Approved business and enterprise users can order, manage, track and view criminal history check results for their candidates. The business portal has a number of other features to streamline pre-employment checks at business and enterprise level.

Business portal users can invite candidates to submit their pre-employment screening check and their candidates are guided through a secure online application and informed consent form.

Speak with ANCC’s business and enterprise team for more information on the business portal.

Wrapping Up

Employers should endeavour to have a written policy (including privacy laws) that can easily be produced.

The employer should try to explain some of these principles prior to the recruitment process.

Sources

Privacy Act 1988 (Cth) - https://www.legislation.gov.au/Details/C2014C00076

Australian Human Rights Commission Act 1986 (AHRC Act) - https://www.legislation.gov.au/Details/C2019C00030

Office of the Australian Information Commissioner (OAIC) - https://www.oaic.gov.au/privacy/australian-privacy-principles/

Australian Human Rights Commission - https://humanrights.gov.au/our-work/human-rights-record-what-other-relevant-laws-do-employers-have-comply-chapter-3#3_3

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