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August 18, 2016

How to Handle Negative Criminal Record Checks

Criminal Record Checks

The staff hiring process is a minefield of legalities, checks, references and multiple rounds of interviews and negotiations these days, and with fraud, identity theft and other crimes rife these days, comprehensive criminal record checks are important.

It can be tempting, when you do come across negative criminal information in a candidate’s history, to immediately take them off the short list and move on. However, while that may shorten your hiring process, it can also get you in big trouble. Here’s what you need to know.

It’s a Human Rights Issue

The first thing you need to know about criminal record checks in Australia is that they do fall under human rights laws and protections. They’re not automatically allowed, and before you can run any of these types of checks on prospective employees, you need to get their consent. They don’t have to give that consent either, and you can’t hold that against them in most cases.

Is It Relevant?

If your prospective employee has provided consent for a criminal background check and you find something negative in their past, you need to be sure it’s relevant before you let it impact any decisions. An old conviction or criminal record for an offence committed in youth might not be relevant, nor may minor crimes or crimes unrelated to the job you are hiring for. If in doubt, consult an expert!

Employees Don’t Have to Disclose

If you are hiring for a position where you have not requested a criminal check, don’t assume that employees are required to disclose their past to you. Legally speaking, they have no obligation to volunteer any information, except under extraordinary circumstances, such as if they are applying to work with children and have a child abuse conviction.

If they are not obliged to disclose, even if you find out about their history later on, you might still not be able to take any disciplinary action.

You Are Required to Be Upfront

While employees don’t have to consent to checks or volunteer information about their past, employers are required to note that criminal record checks are required when they advertise. If you are going to request a check, make sure you include that information in your initial advertisement, so candidates are forewarned. If you do get a negative report and you haven’t advertised your screening requirements, you might not be able to use the information.

Do Them Later, Rather Than Sooner

It’s always a good idea to leave these checks until as late as possible in the hiring process, simply to avoid any possibility of misinterpretation of your reactions to the record with candidates who wouldn’t have made it to your short list anyway. This approach also helps minimize costs, time and paperwork.

Don’t Ask Leading Questions

If you are going to ask for a criminal check, it’s best to avoid asking questions about criminal history at all, and let the reports speak for themselves. The reason for this is that you can potentially get into trouble just for asking leading questions that may lead candidates to divulge information that may not be relevant.

Criminal record checks are invasive, and if you don’t genuinely need them, it’s a good idea not to request them. If you do need to run these kinds of checks, it’s best to leave it to the professionals, or make sure you’re absolutely clear on the law before you even start advertising your position.



Prior to requesting your own check please confirm, prior to ordering, if our reports will be acceptable to the agency you are providing the report to.

Many countries will not provide official government responses. It is your responsibility to confirm if our reports are acceptable and AIS makes no warranties of their acceptance.

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