Can an Employee Refuse to Provide a Police Check?

Can an Employee Refuse to Provide a Police Check?

You could be asked to apply for a police check online at any time during your employment and for all sorts of different reasons. The process to do so is quick and easy and should only take you around five minutes to complete. However, that doesn’t necessarily mean that you’ll want to.

Employees or prospective employees who do not wish to provide a police check have certain rights but will also come up against significant obstacles. For all the ins and outs around refusing to provide a police check, read on.

1. Can an Employee Refuse to Provide a Police Check?

Regardless of the reason you’re asked to provide a police check, employees or prospective employees are never under any obligation to do so. Legally, you are within your rights to refuse to disclose your criminal history at work, and an employer can never force you to do so.

During the online application process for your criminal background check, you will be asked to provide consent before submitting your application. Without consent, the police check cannot be carried out. It is up to you, always, whether you choose to give your consent at this point in the process.

While an employer does not have the right to demand that you consent to a police check, they can ask you to apply for one at any time during your employment. This could be when you’re several years into your position or even before you’re accepted for the role. In other words, it is entirely at their discretion.

Furthermore, even though there is no legal force dictating that you must provide a police check, there are several obstacles you could come up against should you refuse. More on this below.

What Will Happen If I Refuse to Provide a Police Check?

In some instances, if you refuse to provide evidence of police clearance in the form of a police check, you may face disciplinary proceedings at your place of work. That is most likely to happen if you work in job roles that require you to work with vulnerable people or valuable assets.

Crucially, though, you will not face any legal ramifications for declining to cooperate with your employer’s request.

2. Why Might I Be Asked to Provide a Police Check?

Employers might ask their employees to provide police checks for a wide variety of reasons. Often, though, the request is made to ensure the safety of the people or assets an organisation presides over.

You see, in some industry sectors, disclosing criminal history is mandatory because of the risk associated with the work being done. This is the case both for paid and unpaid positions in all States and Territories across Australia. Say, for example, that someone was applying to be a volunteer teaching assistant in Adelaide. They would have to apply for a police check in South Australia to prove they don’t pose a risk to the children they’d be working with.

But, while you might expect to disclose your criminal history before being accepted for a high-risk job role, it is often less clear why you’d be asked to do so further down the line. However, many organisations have a policy of regularly reviewing employees’ criminal histories to ensure they are still right for the role, particularly those in the following sectors:

  • Education.
  • Finance.
  • Legal.
  • Real estate.
  • Security.
  • Construction.

What Jobs Do Not Require a Police Check?

Just as employers in some industries mandate the disclosure of criminal history, others are much less likely to require police checks from their employees. As you might expect, these tend to be in positions that do not require one-on-one interaction with vulnerable individuals, money, or sensitive information.

Generally speaking, labourers are unlikely to need to present a national police check to secure their job role, although that decision is down to the employer. The same can be said for bartenders, delivery drivers, and independent contractors.

3. Can I Be Fired for My Criminal History?

Unfortunately, yes, you can in some cases be fired for having a criminal history. However, context is important and the simple fact of having past convictions is not enough legal justification for your employer to terminate your contract. In addition, there are anti-discrimination laws in place intended to protect former offenders from unfair terminations.

An employer can only fire or refuse to hire you if the nature of your convictions undermines your ability to carry out your duties or puts the organisation you work for at risk. This might be the case if, for example, your convictions are violent in nature and you work with vulnerable people in the medical sector.

If you’re fired after providing a police check in Australia and you believe that there were no reasonable grounds, you may be able to challenge it with an unfair dismissal claim in court.

4. What Information Will a Police Check Disclose?

Before agreeing to provide a police check, it’s worth knowing what information will be disclosed should you apply for one.

The national police check you are issued at the end of the process will state one of two things: that you have either Disclosable Court Outcomes (DCOs) or No Disclosable Court Outcomes (NDCOs). If yours has NDCOs, that means you do not have any former convictions that are considered relevant to the purpose of your check.

If, on the other hand, you have DCOs, some or all of your past convictions will be listed on the certificate. Any that are listed will have been deemed relevant to the position for which you are applying or in which you currently work. This is the same in all regions of the country, meaning that a police check in New South Wales will disclose the same sorts of outcomes as one in Perth or Cairns.

In addition to convictions, your certificate may also include previous charges, court appearances, traffic offences, and more.

Will My Police Check Include Interstate Convictions?

Yes, as mentioned above, all Australian police checks will include the same or similar DCOs, regardless of where in the country the applicant is based. The National Police Checking Service, which is responsible for carrying out all checks, will consult interstate and national police databases to determine which, if any, former convictions should be listed on your certificate.

Will a Police Check Disclose All My Relevant Past Convictions?

Not necessarily. Due to something called spent convictions legislation, some or all of your convictions can essentially be wiped from your record after a set waiting period in which you do not re-offend. This means that older convictions likely will not show on your national police check.

However, this legislation is applied differently in different regions. So, bear in mind that if you apply for a police check in West Australia, you will have to apply for convictions to become spent. Elsewhere, they will become spent automatically.

How Is My Criminal History Handled During a Police Check?

There are several reasons why you may not want to provide a police check to your employer, including not knowing how your criminal history will be handled once you apply. But, you can rest assured that all data is handled securely and with sensitivity.

The only two organisations that gain access to your criminal history during a police check are the accredited body through which you apply and the Australian Criminal Intelligence Commission (ACIC). The National Police Checking Service which actually carries out your check is a branch of ACIC.

5. How Accurate Is My Police Check?

Your police check and the DCOs that are listed on the resulting certificate will be accurate as long as the information you enter upon application is correct. That’s why, at Crime Check Australia, we take the time to evaluate every application and the attached documentation for accuracy and consistency. If we find any errors in yours, we will contact you as soon as possible.

Furthermore, you might experience a delay in receiving your certificate if you have a common name or a name which matches that of a person of interest in a police database. This is to carry out the additional checks necessary to ensure that any DCOs listed on your certificate are undeniably yours.

6. How Long Is a Police Check Valid For?

If you have to provide a police check while in employment, chances are you also had to do one either during the application process or within your first few weeks on the job. In that case, you’re probably wondering how long that initial check is valid for and why you might be asked to provide another one further down the line.

A national police check is considered to be a point in time check which should not be relied upon for an extended period. To put it another way, your police checking certificate is valid at the point of issue. As such, it is the responsibility of an employer to determine how long they consider it appropriate.

If you work with vulnerable people or valuable assets, you will likely be asked to provide a police check regularly, often annually. This is to ensure that you have not gained any new convictions in the intervening period that would put your suitability for your job role in doubt.

Can I Provide a Previous Police Check If Asked By My Employer?

It is not acceptable to provide an out-of-date police check to an employer. This is because, as mentioned above, each criminal record check is valid only at the point in time specified on the certificate. Further, all police checks are valid only for the purpose stated during the application process. An old police check may not meet the criteria necessary for a different purpose.

7. How Much Information Do I Have to Provide on the Purpose of My Police Check?

In the first stage of your police check application, you must provide information relating to the purpose of the check. This is to help ensure that any DCOs included on your certificate are relevant to what you need it for. If your check is, say, for a position in financial services, a previous minor traffic offence would likely not be deemed relevant.

If you click here, you’ll see exactly what information you’ll be asked to provide on the purpose of your police check. This includes:

  • Whether your check is for paid or unpaid work.
  • The name of the organisation requesting the check.
  • The role you’re applying for or working in.
  • Whether you’ll have contact with vulnerable groups in your role.

If you receive your certificate and believe that the DCOs listed on it are unrelated to the purpose of your police check, you have the right to dispute your results. Do so by getting in touch here.

What Other Personal Information Do I Need to Provide for My Police Check?

At this initial point in the application process, you will also be asked to provide your first, middle, and last names as well as contact details including your email address and phone number. This is the case whether you apply for a police check in Victoria, one in the Northern Territory, or another State or Territory entirely.

Then, you’ll have to pay a fee using either a Visa, Mastercard, or Amex card. Finally, the last pieces of personal information you have to include are your gender information, date and place of birth, and five years of address history.

What Documents Do I Need to Provide for My Police Check?

In addition to personal information, you’re required to include scanned copies of four different forms of identification. The ID documents you upload will be checked against the personal information you provide to verify accuracy and consistency.

The documents you need to include are as follows:

  • One commencement document, such as an Australian visa.
  • One primary document, such as an Australian marriage certificate.
  • Two secondary documents, such as a consular photo identity card or utility bill.

If you’re at all concerned that the documents you have are out of date, in different names, or unacceptable for any other reason, contact us. Our team is on hand to help with all doubts, questions, and queries.