Employment

4 Feb

Written By For Good Digital

An employer may legally ask you during the job application process whether you have any previous criminal history; they can also request that you consent to a criminal record check. However, an employer cannot ask you about your spent convictions. They can only ask about convictions that are not spent (unless they have an exemption). Although it may affect your employment prospects, it is ultimately your choice whether or not you wish to disclose your record and/or consent to a criminal record check.
If you choose to disclose your criminal history to an employment agency, be aware that they may owe a duty of care to prospective employers not to refer you for employment should your prior criminal history be relevant to the proposed employment. An employment agency may also owe a duty of care to only refer you to a prospective employer after informing them, with your consent, of your criminal history.
There is no general statutory obligation to voluntarily disclose a criminal history. However, there are some specific exceptions and eligibility requirements imposed by statute that apply to professions and certain occupations for professional registration and licensing purposes. Generally, bodies involved in accreditation and licencing are able to access your criminal history, often including spent convictions. However, it is important to note that a spent conviction can only be disclosed to the agency or department that is deciding whether to register or accredit you. This exemption does not extend to your employer, so an employer will not see any spent convictions on the police check it receives for employment purposes.
Some of the professions and occupations where exemptions apply that enable access to spent convictions for registration and licencing purposes include:
- teachers (Education and Training Reform Act 2006 (Vic) ss 2.6.7(4)(a), 2.6.22A);
- health practitioners (Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) ss 77, 135 –these provisions specifically exclude the operation of spent convictions laws that would otherwise allow non-disclosure of a criminal history);
- lawyers (Legal Profession Uniform Law Application Act 2014 (Vic) s 17);
- security guards and crowd controllers (Private Security Act 2004 (Vic) s 25);
- second-hand dealers and pawnbrokers (Second-Hand Dealers and Pawnbrokers Act 1989 (Vic) s 6(2)(a));
- introduction agents (Australian Consumer Law and Fair Trading Act 2012 (Vic) s 92);
- building practitioners and plumbers (Building Act 1993 (Vic) ss 169A, 221VA);
- conveyancers (Conveyancers Act 2006 (Vic) s 5);
- prison-related services (Corrections Act 1986 (Vic) s 9A);
- poppy cultivators or processors (Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 69NB);
- real estate agents (Estate Agents Act 1980 (Vic) s 14);
- fundraisers (Fundraising Act 1998 (Vic) s 18E);
- car traders (Motor Car Traders Act 1986 (Vic) s 13);
- staff members of supported residential services (Supported Residential Services (Private Proprietors) Act 2010 (Vic) s 66);
- police officers (Victoria Police Act 2013 (Vic) s 103);
- members of the State Emergency Service (Victoria State Emergency Service Act 2005 (Vic) s 37);
- employment in child-related work (Working with Children Act 2005 (Vic));
- out-of-home carers, including kinship carers and foster carers (Children, Youth and Families Act 2005 (Vic) s 77);
- drivers accredited with Commercial Passenger Vehicles Victoria (Commercial Passenger Vehicle Industry Act 2017 (Vic) s 73); and
- aged-care workers and volunteers in aged-care facilities (Aged Care Act 1997 (Cth) s 10A(1)).
A failure to disclose your criminal history may cause problems later if contradictory information appears on your police check. It may also justify your employer terminating your employment at some time in the future (despite the fact that a charge may not have been disclosed on your police record because of a lapse of time). Note that once you are employed, an employer does not have a general right to enquire about your criminal history status, unless your employment is subject to regulations or is a contract requiring ongoing disclosure.
Generally, it is unlikely that a criminal conviction for a minor offence will automatically be a bar to employment. It should be assessed by the employer and considered according to the individual circumstances of the case and the requirements of the job. Unfortunately, some employers do discriminate against people with criminal records and do not consider them for employment, no matter how minor or old the record is, and regardless of its relevance to the job.
However, it is unlawful to discriminate against a person because of their spent conviction. An employer must not treat an employee or an applicant for a job unfairly or unfavourably because of their spent conviction unless the employer has an exemption. Employers and other agencies also have a duty under the Equal Opportunity Act 2010 (Vic) to take proactive steps to prevent unlawful discrimination from occurring.
If you have been treated unfairly because of a spent conviction in areas of public life, you may have experienced unlawful discrimination. This could include:
- being refused accommodation;
- not being accepted for a job (and the employer does not have an exemption);
- denied a service (e.g. banking and insurance);
- treated unfairly at work or at school; or
- prevented from joining a club.
If you have been discriminated against because of a spent conviction, you can contact the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) and/or seek legal advice. The VEOHRC has developed a spent conviction discrimination guideline which provides further information: www.humanrights.vic.gov.au/for-individuals/spent-conviction/. If you wish to make a complaint to the VEOHRC, you should do so within 12 months of the unlawful discrimination occurring.
Some protection is also available under the Australian Human Rights Commission Act 1986 (Cth) (‘AHRC Act’) for people who have been treated unfairly on the basis of having a criminal record. If you think you have been treated unfairly, you may be able to obtain redress and you should seek legal advice.
The AHRC Act prohibits discrimination on the basis of ‘irrelevant criminal record’ (AHRC Act s 3(1); Australian Human Rights Commission Regulations 2019 (Cth) reg 6(a)(iii)). The scope of the prohibition is somewhat broader under the AHRC Act, as ‘irrelevant criminal record’ can include convictions which have not been spent, whereas the Equal Opportunity Act 2010 (Vic) only applies to ‘spent conviction’ related discrimination (s 6(pb)). The Australian Human Rights Commission (AHRC) can investigate discrimination and, where appropriate, try to resolve a discrimination complaint by conciliation. The AHRC can only provide recommendations and does not have the authority to implement or enforce the recommendations, although their recommendations are reported to the federal parliament and are published. Some examples of AHRC reports of inquiries into complaints of discrimination in employment on the basis of criminal record include:
- HREOC Report No. 20, Ms Renai Christensen v Adelaide Casino Ltd; and
- HREOC Report No. 19, Mr Mark Hall v NSW Thoroughbred Racing Board.
There is no discrimination where a person’s criminal record means that they are unable to perform the inherent requirements of a particular job. The AHRC has published Discrimination in Employment on the Basis of Criminal Record and other useful information, which can be found at www.humanrights.gov.au. The guidelines outline a process to help determine whether a criminal record may interfere with the inherent requirements of a job. See also Chapter 11.1 Discrimination and Human Rights.
Criminal record checks for jobs advertised as ‘public sector positions’ are covered by specific recruitment guidelines. Such guidelines usually say that checks should only be completed for the people who are to be offered jobs. The guidelines suggest that people be given an opportunity to discuss any criminal history, usually with the human resources manager, before a final decision about employment is made.
The public sector agency should consider a number of circumstances, including the age of the prior finding of guilt, your age at the time, the number of convictions, the sentence imposed by the court, evidence of rehabilitation including subsequent work experience, and any extenuating circumstances. The main thing for your potential employer to consider is whether the criminal record is relevant to your employment.
If you are unsure about whether you have to disclose a previous criminal record for a job, you should seek legal advice from a lawyer who practices in employment law (see Chapter 2.3: Legal services that can help).