Conducting Background Checks in Australia: The Rundown

Posted: October 22, 2020

Background Checks in Australia

There are many reasons why a company might need to conduct a criminal background check in Australia, including that a job candidate has lived in Australia in the past, or the company might have global offices in Australia.

Criminal Background Checks in Australia

By far, the most common Australian background check is the criminal background check. The process of conducting criminal background checks in Australia is pretty straightforward but there are numerous legal and cultural considerations to keep in mind prior to starting the process.

Here are a few best practices for conducting criminal record searches in Australia:

  • Australian states and territories: Australia is divided into eight states and territories that interpret and administer criminal law differently. And, the states and territories have different names and structures for their court systems. This may sound confusing but the good news is they generally have the same basic set up: local and magistrate courts are the lowest level that hear less serious matters, district and county courts are the next level up with matters heard by a judge, and the Supreme Court is the highest level in each state or territory. The High Court is the highest court that governs all of Australia.
  • National Police History Checks: The Australian Federal Police (AFP) provides “National Police History Checks,” also commonly referred to as “police checks” or “National Police History Certificates.” This background check is considered to be the most reliable criminal report in Australia. National Police History Checks are done through a centralized database to check if candidates have police records. If a match is found in the database, police personnel review the case to see what information (if any) can be released. It is important to avoid Australian background check vendors who offer local police checks since they are usually performing court search substitutes, which are not as reliable as National Police History Checks.
  • The use and disclosure of criminal history information in Australia is influenced by “spent convictions” and federal privacy laws. A “spent conviction” in Australia means that the conviction is older than ten years (five for a juvenile), the individual was not sentenced to prison, the individual has not re-offended, and a statutory exclusion does not apply. If an applicant has a spent conviction, they do not have to disclose it. There are 13 APPs that address a variety of topics including: a requirement for covered entities to have a comprehensive Privacy Policy, a requirement for consent prior to sensitive personal data collection (unless an exception applies) and requirements regarding cross-border disclosures of personal information.
  • There are several requirements for criminal record checks in Australia including that the applicant must provide a consent form and ID verification prior to a background check.
  • It is good practice to conduct a national search outside of a specific state or territory.
  • Be prepared for inconsistent results since they can vary between states and territories.
  • After a criminal records check has been completed, there are several steps to take including notifying the applicant of the results, assist with any disputes, and adhere to Australian record retention requirements.
  • Make sure that all variations of the applicant’s name are obtained so the report will be as accurate as possible.

What other background checks are common in Australia?

In addition to Criminal Record searches, there are several other common background checks in Australia, including:

  • Education Verification – verifies the highest degree obtained by the applicant
  • Employment Verification – verifies the applicant’s last seven years of employment
  • Motor Vehicle Records – Keep in mind that motor vehicle record searches are done at the state level, so results vary greatly.
  • Banned & Disqualified Directors – a registry maintained by the Australian Securities and Investment Commission)
  • Bankruptcy Records
  • Credit Check
  • Civil Records
  • Directorship Search
  • Passport Check
  • Global Search (sanctions and watch lists)
  • Professional License Verification
  • Professional References Verification

Laws pertaining to background checks in Australia

  • The Commonwealth Privacy Act 1988 is used to cover federal agencies and private organizations in Australia and the Australian Capital Territory. However, in 2012 expansive reforms were passed via the Privacy Amendment (Enhancing Privacy Protection) Act 2012. These reforms have been in effect since March 12, 2014. One of the most significant changes with the Amendment came in the form of the Australian Privacy Principles. These principles replaced the previous framework which was divided into two sets –the Information Privacy Principles (which applied to federal government agencies) and the National Privacy Principles (which applied to private companies).
  • The Australian Human Rights Commission Act 1986 (formerly referred to as the Human Rights and Equal Opportunity Commission Act 1986) established the Australian Human Rights Commission (AHRC). The AHRC has defined indirect discrimination to include situations where a neutral condition that applies to everyone has a disproportionate impact on individuals with a particular attribute such as a criminal record. This means that employers should employers should avoid inquiring into spent convictions (unless an exemption applies) and should tailor any questions to those criminal convictions or offenses that are relevant to the inherent requirements of the position.
  • Other important laws pertaining to background checks in Australia include (but are not limited to): Criminal Records Act (New South Wales), Spent Convictions Act (South Australia), Annulled Convictions Act 2003 (Tasmania), Spent Convictions Act 1988 (Western Australia), Spent Convictions Act 2000 (Australian Capital Territory), Criminal Law (Rehabilitation of Offenders) Act 1986 (Queensland), Fair Work Act 2009 (Commonwealth) and Disability Discrimination Act 1992 (Commonwealth).

For more information on the ins and outs of conducting background checks in Australia, or regarding international background checks in general, please feel free to reach out to the Info Cubic team at (877) 360-4636.