In Australia, collection and use of a job applicant’s personal information are subject to Federal privacy legislation and federal/state/territory anti-discrimination laws.
Employee Background screening covers issues such as a job applicant’s education qualifications, previous employment, health/medical condition, criminal records, and even online /social media activity.
Types of background checks in Australia:
1. Education and past employment records
Background checks which involve the collection of personal information relating to a job applicant must be within the purview of The Privacy Act of 1988.
An employer’s collection and use of the information is subject to the restrictions imposed by the Privacy Act, which include:
– Employers are required to inform applicants/subjects as to how their personal information will be collected by the employer/third party background screening organization or any authorized agents of third parties
– Personal information must be collected only where relevant to a person’s application for a particular position.
– A job applicant’s consent must be obtained for the collection of sensitive information ( e.g. information relating to union membership, criminal records, health/genetic information, racial/ethnic origin, political opinions/affiliations, religious beliefs, and sexual preferences.)
– Job applicants must be allowed access to their personal information upon request.
2. Criminal Records
Criminal court records check can be carried out in Australia, through the following agencies, namely:
– Australian Federal Police (AFP)
– Australian Criminal Intelligence Commission (ACIC)
The records accessed by both the agencies are the same; however, the reporting formats are different.
An employer can run a criminal record check on a job applicant through the official authorities (e.g. Australian Federal Police) or a private organization offering criminal record check services, based on the individual’s consents. Employers cannot cite spent convictions while assessing the character and fitness of a job applicant (and applicants are not required to disclose any spent convictions that they may have).
Generally, convictions that are more than 10 years old (or 5 years old for young offenders) and carry low maximum jail terms (e.g. 6 months in New South Wales, Tasmania, Australian Capital Territory, and Northern Territory; 30 months in Queensland and federal prison) will be considered spent convictions. However, one needs to consider certain exclusions.
People who were convicted of violence/sex offenses must mandatorily disclose their convictions when seeking employment involving children. Discrimination on the basis of an irrelevant criminal record is unlawful under Federal, Tasmanian, and Northern Territory legislation.
3. Health checks/Medical Screening
An applicant cannot be forced to answer questions about their health or to undergo a medical examination as part of any recruitment process. However, there is one exception based on the legislation in the state of Queensland which allows employers to require a prospective employee to disclose a pre-existing injury or medical condition (Worker’s Compensation and Rehabilitation Act 2003).
4. Social Media/Internet searches
Checking an applicant’s publicly accessible social media presence, to identify any negative personal activities or behavior are common. However, no employer can insist on an applicant sharing their social media platform passwords during their recruitment process.
5. Drug and Alcohol Testing
Employers can carry out drug tests; however, access to information/results retrieved through these types of tests should be restricted to relevant people only.
The Background Checks mentioned above can be carried out however it is subject to a range of conditions and restrictions. Political opinions and Union Membership checks are just in theory. These checks cannot be carried out as this would disclose a person’s political views and is deemed Human rights violation because it would breach federal/state/territory anti-discrimination legislation.
Other background checks include Credit/Financial check, Fingerprint Check and Handwriting.
The checks that involve seeking the following information, might breach specific prohibitions in federal anti-discrimination legislation.
– Gender, sexual identity, marital status
– Age or age group
– Disability including physical or mental disease, disorder, or illness (unless relevant to the individual’s ability to perform the requirements of the position)
The Restrictions and Laws that exist to regulate Background Checks are:
- Privacy Act 1988 (Cth)
- Crimes Act 1914(Cth), Part VIIC
- Criminal Records Act 1991 (NSW)
- Criminal Law (Rehabilitation of Offenders Act 1986)
- Spent Convictions Act 2011 (SA)
- Annulled Convictions Act 2003 (Tas)
- Spent Convictions Act 1988 (WA)
- Spent Convictions Act 2000( ACT)
- Criminal Records Act 1992 (NT)
- Disability Discrimination Act 1992 (Cth)
- Fair Work Act 2009 (Cth)
If Employers carry out Background checks unlawfully, then according to :
Privacy Act Breaches: Civil penalties up to AUD 340,000 and AUD 1,700,000 can be levied from Organizations.
Anti –Discrimination Law Breaches: Penalties up to AUD 10,200 for individuals and AUD 51,000 for Corporates.
To learn more about background screening in Australia and what your organization needs to keep in mind while performing checks in this country, drop a line via email@example.com. Our subject matter experts will be happy to assist you.
- A Global Guide to Background Checks By Mayer Brown.