A National Police Clearance is a summary of a person’s police history in Australia. It is a list of a person’s disclosable court outcomes and includes any pending charges from all jurisdictions across the country. Conducting a police clearance on a potential new employee is often a staple part of the recruitment process for many employers. The rationale being; to protect the business from any future criminal activity and to ensure a potential new employee, is trustworthy and of good character. There are, however, a number of key legislative provisions in the area of discrimination and privacy, which must be considered when undertaking police checks as part of a recruitment process.
Can I Request a Police Clearance?
An employer can conduct a police clearance check on a potential applicant throughout the recruitment process. Any findings, however, should only be considered where there is a clear link to the inherent requirements of the role.
Where an employer believes that a potential employee’s criminal record may impede their ability to perform the inherent requirements of the position, they must get the person’s consent to conduct the check. It’s also important to advise potential candidates on the job advertisement and throughout the process that a police check may be conducted as part of the recruitment process.
Can I refuse to employ someone based on their criminal history?
An employer may be able to lawfully refuse to employ a prospective employee based on their criminal record where there is a clear link to the inherent requirements of the role. For example, a person with convictions related to assault and violence may be deemed unsuitable for a role that is responsible for the care of vulnerable people such as those with disabilities, the elderly, or children. Another example, is in the context of a person who has a criminal record related to fraud and financial crimes. In this scenario they may be deemed unsuitable for a role that requires them to deal with financial transactions or accounts within a business.
A person’s criminal history should not automatically disqualify them from potential employment, with each circumstance treated and assessed on a case-by-case basis. An example, where a person’s criminal record may have no impediment on the ability to perform the inherent requirements of the role, may be where a person has been convicted for driving offences and they are applying for a role as an accountant. In this situation, there may be no clear link between their performance of the inherent requirements of the role and their past convictions.
Practical Example
A 2018 inquiry conducted by the Australian Human Rights Commission (the AHRC), BE v Suncorp Group Ltd [2018] AusHRC 121, looked into the issue of discrimination in employment based on a person’s criminal record. The complainant raised a written complaint to the AHRC alleging discrimination based on a criminal record after a conditional offer of employment was revoked by Suncorp following a police check conducted on him.
The police check revealed that in 2008 he was convicted of accessing and possessing child pornography and sentenced to 12 months imprisonment. It further revealed that in 2015 he was fined for a failure to comply with reporting obligations related to these previous offences. After receiving the criminal record history, Suncorp discussed the findings with the applicant and later rescinded the offer. At no time did Suncorp cite the criminal record findings as rationale for rescinding the offer, however, the AHRC considered the merits of the matter and determined that the previous convictions were not sufficiently linked to a failure to perform the inherent requirements of the role.
The AHRC made a recommendation in this case that Suncorp pay the applicant $2,500 compensation and further recommended they revise their recruitment policies for people with criminal records and conduct further training for staff involved in recruitment decisions.
Key Considerations
There are several key considerations employers must keep in mind when requiring a police clearance check as part of a recruitment process, such as:
1.) Consider whether the job vacancy requires a police check and if any criminal history may impede an applicant’s ability to perform the inherent requirements of the role;
2.) If you intend to conduct a police clearance check, ensure that it’s written in the job advertisement and reinforced to applicants at time of interview that they may be subjected to a police clearance check;
3.) Ensure you get an applicant’s permission to conduct a police clearance check;
4.) Allow a candidate a right of reply and opportunity to explain any convictions that may be present on a police clearance check;
5.) Treat each scenario on a case-by-case basis; and
6.) Ensure the business has a prescriptive recruitment policy in place which is compliant with equal opportunity, discrimination and privacy legislation considerations in relation to police clearance checks on potential employees.
Want to know more? Contact CCIWA’s Employee Relations Advice Centre team on 9365 7660 or email advice@cciwa.com
