When recruiting a new employee, most employers will conduct a number of pre-employment checks to make sure they are hiring a suitable candidate.

Among these may be a criminal record check.

However, if you are checking a candidate’s criminal history, this must be done lawfully. Any incorrect action could amount to unlawful discrimination.

Before collecting personal information about an individual’s criminal record, employers must ensure that:

The conviction is relevant: To avoid a complaint being made against you, only ask candidates to disclose specific criminal record information that is relevant to the inherent requirements of the job for which they are applying.

The information is collected with the candidate’s consent: When requesting a criminal record check from a candidate, you must: obtain the candidate’s written consent; explain why the check is necessary, i.e. – in reference to the role and your business requirements; and advise the candidate about what they don’t have to disclose, e.g. – spent convictions (see below).

The conviction is not spent: In all states and territories other than Victoria and South Australia, it is unlawful to discriminate against someone with a ‘spent conviction’. ‘Spent’ means the conviction no longer forms part of the person’s publically accessible criminal record, because a specified period of time has passed with no further convictions. Spent convictions schemes are designed to ensure that a person is not indefinitely burdened with the stigma of a criminal conviction.

You have procedures in place to keep the information secure: You must take reasonable steps to protect the information from misuse; loss; unauthorised access; modification; and disclosure.

What to consider if the job applicant does have a criminal record

If an applicant turns out to have a criminal record, you should consider:

1. The seriousness of the conviction or offence.
2. The offence’s relevance to the requirements of the job. In assessing a job applicant’s criminal record against the requirements of the job, you will generally need to discuss the relevance with the job applicant, or invite them to provide further information to explain why it isn’t relevant and whether they can meet the requirements of the job.
3. If there was a finding of guilt without conviction, which indicates a less serious view of the offence by the courts.
4. The age of the applicant when the offence occurred.
5. How long ago the offence occur.
6. Whether the applicant has a pattern of offences.
7. The circumstances in which the offence took place, e.g. whether it was an offence that took place in a work, domestic or personal context.
8. If the applicant’s circumstances have changed since the offence was committed.
9. Whether the offence was decriminalised by Parliament.
10. The attitude of the job applicant to their previous offending behaviour.
11. References from people who know about the offending history.

If you reject an application because of a candidate’s criminal record, you are liable to an investigation by the Australian Human Rights Commission (AHRC).

The AHRC will examine whether the absence of a criminal record is an inherent requirement of the job. If the AHRC decides you did discriminate against the job applicant, it will publish a ruling setting out its recommendations.