A case before the NSW Industrial Relations Commission upheld a decision for an employee to be reinstated after finding that the dissmissal based on the employee’s Police Check result – a criminal conviction of domestic abuse was an over-reaction. This case related to a long-term employee that had an unblemished employment record. The Commission’s decision may have been different had the check been run pre-employment or during the recruitment process.
At PeopleCheck, we often have clients and candidates concerned about what an Australian Police Check might reveal about their background. There is often a mis-understanding about what a police check will show about a person, and how this information can be used in the candidate selection process.
When is a Police Check Relevant?
Police Checks are relevant to almost all roles. More and more organisations are undertaking these types of checks as a basic minimum requirement on all of their staff, which is an encouraging sign. However, there is still a corporate perception that a police check is only useful for certain roles; usually those that involve money or finances. If you ran a customer-service based business, wouldn’t you want to know if one of your key staff had mutliple offences for assault before they abused a difficult client? Or wouldn’t you prefer to know if your new PA had a history of stealing before you gave her unsupervised access to the company credit card?
What will a Police Check Disclose?
A police check will reveal disclosable court outcomes from police records in all Australian states and territories, subject to applicable spent conviction legislation in the relevant jurisdiction.
A common mis-conception is that traffic offences will be revealed in a police check. Generally, traffic offences are not criminal offences and therefore, will not be disclosed in a police check.
Our Police Check Agency
PeopleCheck is an accredited provider to obtain Police Checks through the Australian Criminal Intelligence Commission (“ACIC”) and is listed as such on their website. Accredited brokers are subject to an extensive accreditation process, as well as annual audits. A similar level of compliance is required by PeopleCheck’s clients to ensure ACIC’s requirements are maintained.
Initial results through ACIC are available as quickly as same day/one working day.
As the ACIC is not a Police Agency, they cannot provide an official Police Certificate; however, ACIC do generate a certificate that is widely accepted in Australia, including for ASIC and APRA Compliance.
The Police Check Process
The ACIC partners with Australia police agencies to provide the National Police Checking Service (“NPCS”). The NPCS includes disclosable police information of an individual from all Australian police jurisdictions.
Once a candidate has completed their ACIC police check form and identity has been verified, the candidate’s biographic details are searched within a national database using a name matching algorithm to see whether there are any potential matches for disclosable Police Information.
This initial search is simply a name search that will reveal whether there is a possible match. Possible name matches are common for popular name combinations, and a name will match if there is Police Information for a matching name, which may or may not be the candidate.
ACIC and the relevant Australian Police Agencies compare name matches with Police Information held in Australian police records. The relevant Australian Police Agencies identify any PoliceInformation held in their police records. Where National Police Information is held across multiple jurisdictions, police vet their own records as necessary with a view to disclosing the maximum amount of releasable police information. The type and amount of information that is released through this process will depend upon the category and purpose (role/position) of the check, as well as the jurisdiction where convictions are recorded (and vetted). Spent convictions legislation or information release policies will be applied to this process by vetting police agencies.
It is important to note that including all variations of an individuals name, including former names, is essential for the integrity of the result. A former name or alias may not only identify a match that could be overlooked, but is also essential in assisting Police Agencies discount matches that may not be the subject.
When a match is identified, details of the offence, court, date and court result are provided.
What is the Spent Convictions Scheme?
The aim of the Spent Conviction Scheme (“the Scheme”) is to prevent discrimination on the basis of certain previous convictions. Spent convictions legislation limits the use and disclosure of older, less serious convictions and findings of guilt. Each Australian police agency will apply the relevant Spent Convictions legislation/ information release policy prior to disclosure of Police Information.
Spent convictions for certain offences will be released where the check is required for specific purposes regardless of how old the convictions are.
Due to the Scheme, and depending on the purpose (role) of the police check being undertaken, candidates and clients should both be aware that candidates do not necessarily need to declare all of the offences that may be in their background.
You have the result – What Now?
In cases where a match is identified, this should not necessarily deem the employee ineligible for hire. There are some anti-discrimination guidelines around dissmissing, or not employing a person on the basis of their criminal record, unless the match relates specifically to the job. A common example is a drink driving offence. These offences are not uncommon, and the existence of this in your applicant’s background is generally not an issue if the role is office based, for example. However, if the applicant no longer holds a current driver’s licence as a result and is to be employed in a sales position with a company car, this could be an issue.
ACIC advises that the following be considered when assessing disclosable Police Information identified:
- the scope of the Applicant’s criminal history;
- the nature of the offence and the relationship of the offence to the particular position/profession or other decision under consideration;
- the period of time that has elapsed since the offence took place;
- whether the offence was committed as an adult or a juvenile;
- the type of penalty imposed by the court such as whether the court elects not to record a conviction where the person enters into and successfully completes a conditional order such as a bond or probation, and whether the Applicant has successfully completed the order;
- the severity of any penalty imposed; and
- whether the offence has since been decriminalised.
Additionally, the Australian Human Rights Commission’s publication On the Record: Guidelines for the Prevention of discrimination in Employment on the Basis of Criminal Record provides some practical advice to employers.
Ultimately, it is up to the end user to determine the relevance of any Police Information identified. The end user should apply the context of the position, along with an organisation’s internal controls, processes, policies and culture.
The shortcomings and Limitations of Police Checks
The accuracy and quality of police checks depend on the information provided by the candidate and the comprehensiveness of police records. Under some circumstances, information revealed in a police check may not include all Police Information relating to the candidate. Reasons for this include incorrect name matching and the operation of laws that prevent disclosure of certain Police Information. Further, the police check is a point in time check.
Due to the limitations of a police check, the candidate should be informed of any Police Information returned as poart of their police check to enable the candidate the opportunity to dispute the information recorded about them and/or to identify any errors or mistakes as to their identity of the subject of the Police Information results.
An important key to police checks is that they will only show disclosable court outcomes. It must be noted that not all criminal offences lead to a conviction, and not all offences result in an arrest or go to court. A good example is to consider white collar offences which take place in the workplace. Many organisations are too concerned with the effect on their community and industry reputation, culture and staff morale to report criminal activity that occurred in their business, such as fraud. Instead, the employee resigns or is quietly dismissed and criminal action is never pursued.
Wherever possible, a police check should not be undertaken in isolation to other background checks. Comprehensive employment verification, qualification verification, bankruptcy or media searches may reveal crucial information that a police check will not.
For more information on the ways in which police checks can assist in reducing the risks to your business, please contact us via phone on +612 4023 0603 or email at email@example.com.
Editor’s Note: This post was originally published in September 2017 and has been completely updated for accuracy and comprehensiveness – October 2018.
ACIC – https://www.acic.gov.au/our-services/national-police-checks
Australian Human Rights Commission- https://www.humanrights.gov.au/sites/default/files/content/human_rights/criminalrecord/on_the_record/download/otr_guidelines.pdf
Australian Federal Police – www.afp.gov.au
Australian Standard 4811-2006: Employment Screening