Disclosing Criminal Record to an Employer

According to the Australian Human Rights Commission (‘AHRC’), persons with a criminal record face significant barriers to obtaining employment due to discrimination in the workplace on the basis of a criminal record.

There is no hard and fast rule as to whether an employee or job applicant must disclose whether they have a criminal history to an employer or recruiter.  This will depend upon a case by case analysis, and any relevant laws that require disclosure.

It is recognised that an employer is able to exclude someone with a criminal record if that person’s particular criminal record means they cannot fulfill the ‘inherent requirements’ of the job.  An example may be that as part of a job, a person must hold a current security pass.  A criminal record may mean that person cannot obtain the security pass, and accordingly they cannot fulfill the inherent requirements of the job.  Alternatively, if a person will be in a position of trust and has convictions for dishonesty offences, this may likewise enable an employer to exclude them on the basis they cannot fulfill the inherent requirements.

As such, it is generally open to an employer to ask an applicant if he or she has a criminal record.  It is suggested that an applicant should respond honestly and candidly to any such question.  If an applicant gives a dishonest answer of refuses to answer a reasonable question in this regard, the employer may be entitled to reject their application for employment.

However, an applicant may not need to disclose their entire criminal record.  Special attention should be paid to the line of questioning from an employer, who may ask about any “convictions” or alternatively “findings of guilt with or without conviction”.

The difference is that there may be instances where an applicant may not need to disclose certain criminal offences, for example, where an applicant has been found guilty of an offence but had no conviction recorded.

There are also certain offences which are known as “spent convictions” which are convictions that have been removed from a person’s criminal history after a certain period of time, usually subject to no future convictions.  In this situation, ordinarily employees or job applicants are not required to disclose spent convictions to anyone even if questioned about it – unless there is a special requirement under law that you do disclose it.

An example of a special legal requirement to disclose an entire criminal record is where a person is working with children.  Throughout Australia, there is a legal requirement that any persons working with children must be closely screened for a relevant criminal record due to the importance of protecting children.

There are also certain recognised occupations where the law regulates that applicants must pass a criminal record screening process to obtain employment such as teachers, police, or legal professionals.

The AHRC has opined that alleged discrimination on the basis of a criminal record “involves a careful balancing of different rights” those being: the right of the applicant to rehabilitate after serving their time, balanced against whether the criminal record poses an unacceptably high risk if the applicant is employed in a particular position.

If you wish to apply for a Queensland criminal history check for yourself, you can do so by attending your local police station and presenting ID and paying an application fee.

For further information, please see: https://www.qld.gov.au/law/crime-and-police/criminal-records-and-history-checks/criminal-history-checks/