Should employers request information about a person's criminal record before a Nationally Coordinated Criminal History Check?

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We all understand how vital a Nationally Coordinated Criminal History Check (Background Check) is to recruiting agencies and other organisations. The Checks inform the organisation about the candidate's criminal records or any history that will hinder them from holding the role or task they seek.

However, employers must be careful when requesting the Nationally Coordinated Criminal History Check certificate from their candidate. These Checks are sensitive and private documents of the candidate and must be treated with the utmost security. Mishandling these documents in any form can lead to legal or punitive actions against the organisation. These breaches are well explained in various sections of the Privacy laws.

Discrimination and dealing with sensitive records in Australia

Generally, the relevant laws in Australia prohibit organisations from entirely investing or concerning themselves with documents that are not related to the role. It can even come as discrimination against an organisation if they directly request a Criminal record before the official Nationally Coordinated Criminal History Check records.

Criminal records are sensitive information, and any unofficial/illicit handling of these records can land your organisation in trouble with the law. It is a best practice only to request a Nationally Coordinated Criminal History Check when it is legitimate to do it under your internal organisation policies.

Why requesting the Criminal record before Nationally Coordinated Criminal History Check can be discrimination?

Discrimination occurs in various forms, no less in corporate organisations and firms. In collaboration with the States and Territories, the Australian government continues to work tirelessly to ensure that these irregularities are broken down.

It is common for some organisations to discriminate against a candidate because of their criminal records, even when the law explicitly prohibits it. However, some of these organisations are unaware of some of these laws defining certain acts as discrimination.

• Such a process lacks transparency.

Any organisation that considers certain records to hinder the role they hire for should state it in the preliminary advert. It is dishonest and illegitimate for an organisation only to start requesting criminal records if such a requirement was not earlier stated.

• The candidate is never aware of the standard of assessment

If an organisation requests for specific records before/without a Nationally Coordinated Criminal History Check, the candidate does not know the metric by which they will be judged. It can expose the organisation to complaints of discrimination or unfair treatment of staff and employees.

It is always essential that the organisation states its metrics and assessment methods before requesting the Nationally Coordinated Criminal History Check.

• The Employer is uninformed of circumstances around the offences

While a Nationally Coordinated Criminal History Check will provide other relevant information regarding the records, directly requesting criminal records does not. Most times, the other issues regarding the convictions are just as important as the criminal record.

For example, the Nationally Coordinated Criminal History Check reveals other information, including;

• ✔ The type of sentence the court issued against the individual,
• ✔ If the court issued no-convictions sentencing,
• ✔ Whether the candidate has a pending court charge,
• ✔ If the court issued a Good Behaviour Bond for the offence.

These factors can influence how the organisation considers the offence and the effect on their roles.

• organisations use it as a means to disqualify certain groups

Some employers can be notorious for using these private records they collect from the candidate to disqualify them from the role without considering other factors. While it can be understandable and within the law, it is wrong to discriminate for employers to disqualify "unsuitable" persons.

The policies encourage an organisation only to use the Nationally Coordinated Criminal History Check/record to assess candidates when they are shortlisted. And if it is necessary for the role, they must broadcast it in the original job advert.

Problems with requesting Criminal records before the Nationally Coordinated Criminal History Check

Organisations should be wary of demanding other records outside the Nationally Coordinated Criminal History Check as there are many associated risks. The common problem with requesting informal criminal record reports/documents is the aspect of discrimination.

Of course, it is challenging for an organisation to defend why they request private Criminal records before the more "standard" Nationally Coordinated Criminal History Check certificate. And this can count against your organisation in serious court matters regarding discrimination and other private records discrepancies.

• Mishandling of Private records

When organisations request criminal records outside the Nationally Coordinated Criminal History Check, there is always the problem of mishandling. Compared to standard nationally coordinated criminal history checks, informal requests for criminal records are not usually transmitted through secure chains or areas.

• Improper assessment

An organisation may lose the opportunity to recruit a better-suited candidate for the role because of hasty decisions made with the informal criminal records. While a Nationally Coordinated Criminal History Check is more balanced, the criminal record is a targeted means of requesting the candidate's record.

Requesting for Criminal records in Job advertisements

We understand that specific roles are inherently "unsuitable" to people with certain records. The organisation must state this (with reasons) in the job advert.

For example, the Employer can include questions about;

• ✔ How long ago the candidate was convicted of the offence and if they had any recent convictions for the same crime.
• ✔ If the conviction was given to them as a juvenile, five years had elapsed since they received it.
• ✔ If the conviction is older than ten years old, and
• ✔ where the imprisonment was greater than 30 months old (they should provide specific details)

Wrapping Up

While it is not inherently illegal to request some sort of criminal records, all actions must;

• ✔ Follow safe and correct legal procedures,
• ✔ Must not be malignant to the candidate/employee,
• ✔ Should not go against policies of established agencies.

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