A Criminal Background may be revealed through a Nationally Coordinated Criminal History Check (NCCHC). This is one of the main reasons why this police check is conducted on prospective employees.
The consequences of having a criminal record in Australia can be severe and can affect your career or right to travel. Generally, an organisation will not prefer to hire an applicant who has a serious criminal record.
What Are Criminal Records & Are They For Life?
If an applicant is being charged with an offence, it will lead to a criminal conviction. However, not all offences can be termed as "criminal”. Criminal records include crimes such as driving under the influence of alcohol, theft/robbery, etc.
More serious offences are those related to the use of illegal drugs, assaults, rape, or murder. The use of offensive and foul language in public can also add to your criminal record.
Generally, criminal records are not for life. It will appear on your National Police Check record for ten years and then be considered as "spent”. Spent convictions will generally not appear on a police check result.
However, if an applicant has more serious offences such as murder, or if you have been imprisoned for more than six months, those records will never be spent.
When Can Your Employer Refuse to Hire You?
Specific industries in Australia can refuse a job offer to a potential employee if their conviction relates to the nature of work.
A "Working With Children Check" is only required for those who want to apply for roles that involve working in schools, childcare centres, etc. According to all Australian jurisdictions policy, as child protection is critical, any applicant with criminal records should be scrutinised.
There is no particular time-frame for How Long is a Police Check Valid For. Generally, most industries have their measures to investigate if an applicant has a criminal record. So, one may need another police check certificate in a short time if their job role differs from the previous one, especially if you want to work with children or vulnerable groups.
Other industries have also tightened their norms. Some examples may include:
- Retail/finance industry will not hire an applicant convicted of fraud or theft charges
- An applicant may not work in the medical field if they are convicted of abuse or domestic violence charges
- Delivery services or truck driving industries may not hire an applicant if they have PCA or similar offences
- An applicant will not be eligible to work as a teacher or instructor if they are convicted as a sex offender.
Remember - it will not be illegal for organisations if they want to hire an applicant in spite of related convictions. However, if they refuse, it will be for a legitimate and viable reason.
What will Happen if an Employer refuses to hire someone due to an Unrelated Crime?
An applicant needs to remember that:
- In Australia, it is illegal to discriminate against an individual based on criminal records if the crime committed and the job role are not related. For example, if an applicant is applying for an accountant role at a bank, and holds a traffic-related offence, the employer can’t refuse to hire them on the basis of that offence.
- Licensing organisations have their own rules in terms of providing a licence to someone with a criminal record. In most cases, Professional Associations do not allow individuals with criminal histories to work in the organisation.
- Except for Victoria, in all other Australian states, if an applicant believes they have been disqualified by an employer based on unrelated criminal backgrounds, they can approach the Equal Opportunities Commission. An applicant must ensure to have strong supporting proofs to prove their case or can get a South Australia Police Check if working in the Southern States of Australia.
- Fundamentally, an employer must establish the fact that the applicant’s criminal backgrounds are related to the job profile, before making the final decision of refusal. In Victoria, only applicants who have officially obtained employment at a company are eligible to approach the Commission, not prospective employees.
How Much Should I Disclose on My Criminal Record?
A prospective new hire is not obliged to disclose any information about their criminal record, if not explicitly asked by the employer.
In other instances, specific licencing or legislation organisations requires elaborate disclosure. In other circumstances, certain position titles/roles require disclosure.
The employer-employee relationship should be based on complete honesty. So, if an employer asks you about your records, it’s always better to be honest. A dishonest answer may be the reason for a job refusal, or may land you and the organisation in trouble later on.
An applicant may not have to disclose their full criminal record. There may be a condition where an applicant has been found guilty but with no conviction. In some cases like these, it may not be required to disclose the full criminal record.
However, one must keep in mind the situation depends on whether an employer asks you to reveal a ‘finding of guilt, with or without conviction.’
An applicant can apply for a Nationally Coordinated Criminal History Check through an accredited body of the Australian Criminal Intelligence Commission.
For more information on the process of lodging the check, click on the following link: https://www.koncheck.com/npc/npc-form
A complaint regarding equal opportunity in employment can be made under the Australian Human Rights Commission Act 1986 (Cth).
Complaints obtained can be settled by conciliation between the two parties.
In the situation that the matter cannot be reconciled and is not abandoned for other purposes, the Commission will submit a report with the key issues and a recommendation to the federal Parliament.
What if I was Refused Employment Based on a Criminal Record?
An applicant is eligible to lodge a formal complaint to the Australian Human Rights Commission if they have been approved of the job, were performing the required duties of the job, but were later dismissed due to criminal records. As another option, one can make an unfair dismissal claim.
Employees will be required to consider the number of days they were working at the organisation and ensure they meet the 21-day deadline to claim this.