Is your po­lice his­tory pri­vate?

Kapi-Mana News - - OPINION - ALANAL KNOWSLEYKN

When can an em­ployer ac­cess a job ap­pli­cant’s crim­i­nal or credit his- tory?

Gen­er­ally, an em­ployer can ask an ap­pli­cant for per­sonal in­for­ma­tion that is rel­e­vant to the job and nec­es­sary for them to know about.

That means in some cir­cum­stances an em­ployer can ask about the ap­pli­cant’s crim­i­nal past.

Of­ten, it’s nec­es­sary to know about the ap­pli­cant’s crim­i­nal past. More so if the na­ture of the role means the em­ployee will be in a po­si­tion of re­spon­si­bil­ity, or deal­ing with vul­ner­a­ble peo­ple.

In fact, in some cases em­ploy­ers have to check this in­for­ma­tion.

An em­ployer should not ask about po­lice di­ver­sions, or about any­thing cov­ered by the Crim­i­nal Records (Clean Slate) Act, un­less a spe­cific ex­cep­tion ap­plies. In most cases, if the ap­pli­cant is asked about ei­ther of th­ese things, they do not need to sup­ply that in­for­ma­tion. Nor do the po­lice. Di­ver­sion in­for­ma­tion is not rel­e­vant to a per­son’s abil­ity to do a good job. Like­wise, nei­ther is any con­vic­tion con­cealed un­der the Crim­i­nal Records (Clean Slate) Act. The act ap­plies only if cer­tain cri­te­ria are met.

The per­son must not have had con­vic­tions within the last seven years. They must have never been sen­tenced to a cus­to­dial sen­tence (in­clud­ing im­pris­on­ment, cor­rec­tive train­ing, or borstal).

The act does not ap­ply if the per­son has been or­dered by a court to be de­tained in hos­pi­tal be­cause of a men­tal con­di­tion.

It will not ap­ply to ‘‘spec­i­fied’’ of­fences, in­clud­ing sex­ual of­fend­ing against chil­dren, young peo­ple, or the im­paired.

The per­son must never have been in­def­i­nitely dis­qual­i­fied from driv­ing. They must also have paid any fines, repa­ra­tion, or costs or­dered by the court in full.

As can be imag­ined, the qual­i­fi­ca­tions mean that gen­er­ally, if the act ap­plies, the per­son’s crim­i­nal of­fend­ing is less se­ri­ous. This al­lows for sec­ond chances – the per­son’s crim­i­nal his­tory should be no bar to fur­ther em­ploy­ment.

In some rare cases, or with cer­tain jobs, a con­vic­tion con­cealed un­der the Crim­i­nal Records (Clean Slate) Act can be re­vealed. That is pro­vided for within the leg­is­la­tion.

For ex­am­ple, if the per­son is ap­ply­ing for a spe­cific job. In­cluded in this cat­e­gory are jobs in­volv­ing na­tional se­cu­rity, jobs with po­lice or cor­rec­tions, and jobs of par­tic­u­lar com­mu­nity re­spon­si­bil­ity (such as judge, jus­tice of the peace, com­mu­nity mag­is­trate, foster par­ents, or po­si­tions in­volv­ing care and pro­tec­tion of chil­dren and young peo­ple).

Some em­ploy­ers will also be able to ask for po­lice vet­ting.

Po­lice vet­ting is dif­fer­ent to a full crim­i­nal his­tory check. Some peo­ple may be vet­ted by po­lice for cer­tain rea­sons, de­spite not hav­ing a crim­i­nal his­tory.

Only ap­proved or­gan­i­sa­tions, reg­is­tered with the po­lice Vet­ting Ser­vice, can ap­ply for Po­lice vet­ting.

Ap­proved or­gan­i­sa­tions must still ask and ob­tain the ap­pli­cant’s per­mis­sion through a re­quest and con­sent form, be­fore a po­lice vet can be car­ried out.

Tra­di­tion­ally, or­gan­i­sa­tions that pro­vide care for chil­dren, the el­derly and vul- ner­a­ble peo­ple can reg­is­ter for po­lice vet­ting ser­vices.

In some cases, an em­ployer can ask for ac­cess to an ap­pli­cant’s credit his­tory.

In gen­eral, that is only per­mis­si­ble if the ap­pli­cant con­sents (in writ­ing is best). The pur­pose of any check is for pre-em­ploy­ment, and the pro­posed em­ploy­ment is in a po­si­tion in­volv­ing sig­nif­i­cant fi­nan­cial risk.

Sig­nif­i­cant fi­nan­cial risk means more than sim­ple cash han­dling. In one case, a re­tailer was caught out by the Pri­vacy Com­mis­sion for ask­ing for a credit check for a teller po­si­tion.

Sim­ple cash han­dling did not meet the ‘‘ sig­nif­i­cant fi­nan­cial risk’’ thresh­old. How­ever, if a po­si­tion deals with money, ac­counts and fi­nan­cial ad­min­is­tra­tion, a credit check may be ap­pro­pri­ate.

If a credit check is nec­es­sary, but the ap­pli­cant re­fuses to con­sent to one, then an em­ployer would be wise to read the signs and re­ject the job ap­pli­cant.

To seek a credit check with­out the ap­pli­cant’s con­sent may breach the Pri­vacy Act and the credit re­port­ing pri­vacy code.

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