When can you ask a candidate to have a police check? A legal expert explains the key steps to make sure you’ve got your bases covered.

Certain roles require a police check as a legal requirement, but it’s becoming increasingly common for organisations to conduct police checks as a risk mitigation strategy, even when it’s not legally mandated.

Employers must follow the right steps to make sure they’re handling personal information in the right way, and only for the purpose of verifying if someone is fit for the role.

Michael Byrnes, Employment Law Partner at Swaab, discusses the key steps employers need to take when conducting a police check.

When do you need to conduct a police check?

There are two key instances where you would need to conduct a police check, says Byrnes. 

“There are some jobs that require a police check as a regulatory condition for that position,” says Byrnes. “This is commonplace in industries including government, education and healthcare, where employees may be in a position of authority and working with vulnerable people. Volunteers in these industries are often required to submit police checks as a condition of their role, too.”

The second instance is when a company would prefer to have a police check for some, or all, employees. A police check “might not necessarily be required by the government or by the relevant regulatory authorities, but it is still something that is relevant to the role”, says Byrnes.

This is applicable to roles that require a high degree of trust or confidence, and where a criminal conviction or certain offences could be “incompatible” with someone holding that role, adds Byrnes.

“For instance, if you are going to work for a bank or a financial institution, and you’re going to have access to people’s bank accounts, it’s fair to say that it is important that you do not have any convictions, or at least recent convictions, for fraud or embezzlement.”

He also says that criminal checks in the financial services industry have become more common since the Banking Royal Commission.

If you’re unsure whether a police check is relevant to the position you’re hiring for, Byrnes suggests the following: 

“Look at what the role entails, look at the risks involved in that role, then say: if someone had a relatively recent criminal conviction for these matters, would that present a risk? To colleagues, to clients, to those who interact with them in the workplace, or to the general public?” 

A police check will be easier to justify if the role involves access to confidential or highly sensitive information, says Byrnes.

If a police check is irrelevant to the role, or the request is based on moral judgement, it might be difficult to sustain. However, “if there is a clear objective link between the particular convictions that the employer is concerned about, and the role, then it’s far easier to justify,” says Byrnes.

What to do before conducting a police check

Informed consent is “the most important thing”, says Byrnes. 

“You need to make sure you are collecting the information only for the purpose for which you state you’re collecting it, which is the recruitment of the person to the role.” 

It’s important to be upfront about what the role requires before you even speak to the candidate, says Byrnes. 

“It should be squarely foreshadowed that a police check is going to happen,” he says. “It should go in up front and it should be something referred to at every stage [of the hiring process].”

Make it clear in both the job advertisement, the first interview, and any follow-up interviews that a police check is a requirement for the role. 

Setting these expectations before going into the hiring process means there will be no hidden surprises for candidates. Although it’s not obligatory to explain the reasoning behind the request or why the role you are hiring for requires a police check, it is highly advisable, says Byrnes.

It’s also advisable to limit the number of people handling records of candidates or existing employees’ criminal histories to those who are directly involved in the recruitment process. For example, the NSW Police Department only allows up to five contact officers per organisation to access the National Police Check portal to process police checks on behalf of employees.  

Employers must abide by the Australian Privacy Principles and treat personal information with complete confidentiality. Bear in mind that candidates will not yet have an employment record, says Byrnes, meaning that the ‘employee records exemption’ under Australian privacy law does not apply to them. Their records will need to be handled in accordance with the privacy policy of the employer, says Byrnes.

Make sure to include all legal names – past and present – and the correct date of birth in the application, says Byrnes, to avoid any risk of pulling in someone else’s criminal history and slowing down the process. 

The AFP has a helpful list of different primary and secondary points of identification required for a police check, which you can give to candidates ahead of time.

Practicalities of conducting a police check

To request a police check, employers can contact their relevant State or Territory police service directly, go through an Australian Criminal Intelligence Commission (ACIC) accredited body, or become an accredited body themselves.

There are two kinds: National Police Check and an Australian Federal Police Check. Although the former is most common, it’s best to confirm which one applies to the role.

The general return time for a police check submitted online is between 24 to 48 hours. However, processing time can vary based on a few factors, such as how common the applicant’s name is and current capacity levels within the police force or accredited body. 

Processing time may also be extended if a check is transferred to a law enforcement officer for manual processing. The ACIC website outlines instances when it might be flagged for manual review.  

In order to save on time and costs, the criminal check process should only be done once you’ve whittled the candidates down to a final shortlist, says Byrnes.

“It should be done at the final stage where you’re conducting a police check for one candidate before confirming their employment, or you’ve got to the position where there are two or three candidates, and you’re doing the check at that stage.”

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