How Worker Checks works with the Australian Criminal  Intelligence Commission (ACIC) in the  Police Check process

The police check process is used to help protect the Australian community, the Australian Criminal Intelligence Commission (ACIC) works with Australian police agencies and accredited bodies such as Worker Checks to deliver the National Police Checking Service (NPCS or the Service). The Service allows people to apply for a Nationally Coordinated Criminal History Check (check).

A Nationally Coordinated Criminal History Check is often required when applying for employment, Australian citizenship, appointment to positions of trust and a variety of licensing and registration schemes. It helps organisations make informed decisions about the suitability of applicants for:

• recruitment, job applications and pre-employment screening
• volunteer and not for profit positions
• working with children or vulnerable people
• immigration and citizenship
• visa applications
• adoption applications
• occupation related licensing
• firearm licensing.

Click here to get your Nationally Coordinated Criminal History Check with Worker Checks.

 

Police Check process steps:

Step 1—Applicant submits check

An applicant submits an application for a check through either an ACIC accredited body such as Worker Checks.

Step 2—Worker Checks lodges the application

Once Worker Checks verifies the applicant’s identity, they submit the applicant’s personal details provided into the National Police Checking Service Support System (NSS), the national IT system owned and operated by the ACIC.

Step 3—Applicant’s details are searched against national records

The applicant’s personal details are checked against a national database using a name matching algorithm. If the personal details match any police information held in police records, the system will generate a ‘potential match’.

Step 4—Potential match referred to police (Matching)

If the system generates a potential match, it will be referred to the relevant police agency (or agencies) for further assessment. If the police agency confirms the applicant’s details do not match the police information, a ‘No Disclosable Court Outcome’ result will be provided to the accredited body or police agency that submitted the check. If the police agency determines the applicant’s details do match the police information, a referral is generated with the relevant police agency for them to conduct their ‘vetting’ process.

Step 5—Police apply spent conviction legislation and/or information release policies (Vetting)

When an applicant’s personal details match the police information held in police records, the police agencies will determine what information can be released in accordance with the purpose of the check and the relevant spent convictions legislation and/or information release policies. This is commonly referred to as ‘vetting”.

Step 6—Check result is released

Once the police have finished processing the check,Worker Checks can retrieve the check result. On receiving the result, Worker Checks will notify the applicant that the result is available via email and SMS.

Step 7—The check result may be provided to the applicant

Login in to your Worker Checks account to view your certificate.

 

Government Accredited

Click here to view ACIC Accreditation

Disclosable Court Outcomes on a police check. What are they?

There are a number of reasons why an organisation may request your Nationally Coordinated Criminal History Check. However, depending on the discretion of the organisation, they likely assess your suitability for what you apply for based on the details of your Disclosable Court Outcomes.

What are Disclosable Court Outcomes?

When you apply for a criminal history check, there are two possible results:

1. Disclosable Court Outcomes (DCOs)
2. No Disclosable Court Outcomes (NDCOs)

If you have any conviction, pending charge or criminal offence convicted by a legal court, they all appear in your Nationally Coordinated Criminal History Check or AFP Check.

Some categories of DCOs that appear on Police Checks are;

• Sexually related offences
• Traffic charges for which an individual is convicted in a court
• All Sentences and Convictions
• Pending court charges and offences
• Serious assault related offences
• Other offences not under the Spent convictions scheme

Spent Convictions: Depending on the State’s legislation or the applicable spent convictions scheme, some offences are not included in your DCOs. In Victoria, NO spent convictions are shown are employment related police clearances.

Spent convictions are offences which after some years, or meeting some conditions are expunged from an individual’s updated Police Check. Some of these conditions are;

• Ten (10) consecutive years of the waiting period has elapsed since the person was convicted of the crime (in an adult court).
• Five (5) consecutive years of the waiting period has elapsed since the person was convicted of the crime (in a youth court/as a juvenile).

It also follows that;

• The individual must not be convicted of any punishable offence during this waiting period, or the period restarts
• If a jail term is imposed, the crime-free period begins after the jail term
• Convictions stipulated by the court to be considered as Spent if the individual meets Special conditions (community works, therapy, self-quarantine, and co.)

However, some offences can never be classified as “spent” no matter the period elapsed. These offences are considered “Serious” and always appear in an individual’s criminal record check. Some of these offences are;

• Sexually related convictions
• Convictions against corporate organisations and institutions
• Convictions stated by the regulations/Court sentencing
• Convictions for which a prison sentence of six or more months is imposed

No Disclosable Court Outcomes

Applicants that have their Police Check return with NDCOs have passed a national criminal history check application. It means they have no Police/conviction history that is considered releasable or “serious” or no convictions at all.

“Offences” not included as DCOs

Most people have a certain fear of their convictions, history or criminal records and fret over what will be displayed on their Criminal history checks. However, not all your offences are considered Disclosable – including the spent convictions.

Some offences are not “serious”, or they lack the jurisdiction to be included in your DCOs

These offences are, and are not limited to;

• Convictions outside the country.
• Diversion programs.
• Spent Convictions
• Punitive measures by third party institutions or other professional bodies/unions.
• Offences outside the jurisdiction of Australian police agencies/courts

Where are my DCOs sourced from?

A Nationally Coordinated Criminal History Check (NCHC) is a nationwide check program that lists all the disclosable police/criminal records of an individual from all the States and Territories in Australia. So if you have lived in a different state where you got a conviction, it will likely appear in whichever Police Check you apply for.

The Australian Police Check is valid throughout the nation and for employment or volunteering related purposes. It captures all criminal records of an individual via each State and local Police database.

A national criminal history check will undergo vetting through the following Australian states and territories:

• Police Check Tasmania
• Police Check QLD
• Police Check ACT
• Police Check VIC
• Police Check WA
• Police Check NT
• Police Check NSW

What is a Police Check used for?

A Nationally Coordinated Criminal History Check is not only a useful and standard check to ascertain individual suitability for a role, it is also mandatory for some purposes. A person who wants to volunteer in an aged care role must submit an updated Police Check. Public vehicle drivers, nannies, Healthcare workers, Teachers, and co must also provide a valid Criminal Record Check.

Here are some purposes for which you need a Nationally Coordinated Criminal History Check;

• Licensing (Firearms, Schools and co)
• Employment and Recruiting (financial roles, caregivers, working in child-related roles, and co.)
• Working with elderly community members like police checks for aged care sector
• Contracts (Real Estate, Freelancing)
• Police Checks for clubs and community organisations

Can a Police Check expire?

A Police Check is a point in time check and remains valid from the point of issue. You may continue using your Police Check certificate until you apply for an updated Police check. However, most organisations or agencies will not accept a Check certificate older than three (3) months.

When interpreting a Police Check, different agencies/organisations use discretion based on their risk mitigation strategy. That is why an individual should apply for an updated Police Check when applying for a new role (especially when their previous Checks are older than 3 months).

If you are convicted of an offence within this period, you should apply for an updated police clearance and inform your company.

Who can apply for a Police Check?

Anyone can apply for a police clearance. Getting your check also provides you with knowledge of your convictions history and DCOs. People who know the details of their convictions (if any) begin to seek other means to mitigate the effect on their future activities.

How long does it take to process a Police Check?

When you apply online, you will typically get an Nationally Coordinated Criminal History Check posted in your personal portal within 1 hour of your application. The remaining that get referred for manual processing may take up to 10 business days. The applications can be completed via a PC, Tablet or mobile device, including the payment required.

Applying through Worker Checks online portal is fast, efficient, and convenient with your schedule.

 

Do Pending Charges Show up on a Police Check?

Pending charges on Police Check – do they appear?  This is a very common question that gets asked at Worker Checks.

The answer differs by state.

The simple answer is YES. Pending charges DO show up on a Nationally Coordinated Criminal History Check  in all state and territories aside from Victoria.

However, pending charges DO NOT show up on a Police Check in Victoria.

Changes to Victoria Spent Convictions Scheme

From 1 December 2021 changes to the Victorian Spent Convictions Act commenced.

From this date you may notice changes to the information that is released by Victoria Police for Police Check VIC.

This includes the way a person’s criminal history information can be used and disclosed, including what can and cannot be released on a police record check. Some of the changes that have been implemented from 1 December are:

• Victorian convictions that are spent will no longer show up on a police record check, unless an exemption applies.
• Generally speaking, convictions with a sentencing outcome of 30 months imprisonment or less will be spent automatically after a 10-year crime-free period for adults and five years for young people.
• In some circumstances, a conviction will be spent immediately, including when a person was under the age of 15 when they committed the offence.
• Criminal charges where a court has not yet made a decision (pending charges) or information relating to an ongoing investigation by police, or a finding of not guilty by reason of mental impairment will in most circumstances not be released.
• The Spent Conviction Act will only apply to disclosure for standard employment checks.
• Where there is other Victorian legislation or existing national agreements (e.g. ECHIPWC/NDIS) or national laws (e.g. AHPRA) disclosure for those checks will not be affected.

Further information has been made available on the Department of Justice and Community Safety website at Spent Convictions Act 2021 | Department of Justice and Community Safety Victoria

 

Police Check 101 - click for Overview

 

A failed police check is not the end of the world!  Read on…

 

What to Do If a Potential Employee Fails a Police Check

If an individual fails a police check, it means that their criminal record has raised some concerns for the organisation conducting the check.

The result of a police check can vary based on the purpose of the check and the laws and regulations of the state in question. In some cases, a failed police check may result in the denial of employment, security clearance, or visa application.

It is important to note that police checks are just one aspect that is considered by organisations, and they may take into account other factors such as the nature and severity of the offense and the individual’s character and behavior since the offense was committed.

If you have failed a police check, you may want to speak to the organisation that conducted the check or seek legal advice to understand the implications and any potential avenues for appeal or resolution.

 

A ‘Failed’ Criminal History Check

A high number of job vacancy adverts now comes with a disclaimer along the lines of:

All offers of employment are subject to a police check clearance that is deemed satisfactory

Where a lot of employers go wrong is in assuming that this disclaimer (however it is worded) gives them complete coverage and allows them to either dismiss an employee or refuse an employee’s application if a national police check shows a criminal history. That is not the case.

The Legal Obligations of Employers and a Police Check

While most businesses are aware that to survive in the modern age they have to be both ethically and business-focused. That’s why so many are now requiring a background check on employees. In some businesses and industries, a criminal record check is required by law.

For example, if you run a business that works in the aged care or disability care sectors and you hire someone with a criminal history of sexual offences or violence then you may be punished by the authorities for employing that person. The challenge is ensuring that employees are not being discriminated against based on their police check and criminal history.

To ‘fail’ a background check doesn’t always mean that the person applying for a job is not legally suited to the position. That means you need to ensure that you interpret the nationally coordinated criminal history check with the right kind of guidance. By integrating the right strategies in your hiring process, you can potentially save yourself a lot of legal issues.

The key thing to determine is what constitutes a criminal check ‘failure’ for your organisation, the advertised vacancy, and for your industry.

When is a Criminal Background Check Deemed Unsatisfactory?

Say that you’re looking to hire an accountant. You get an application in response to your ad from a qualified accountant with an excellent and relevant work history. Unfortunately, the Police Check is returned and it shows that they have criminal convictions related to speeding in their car, or were arrested and convicted of being drunk and disorderly after their graduation day.

In those cases, the conviction is not for anything relevant to the advertised position, so would it be fair to deny hiring that person who is otherwise perfectly suited to the position?

However you choose to address this kind of situation will end up affecting the rest of your business. It tells your existing employees that you’re more tolerant of a criminal background check showing unrelated convictions. However, if you’re too strict then you could potentially be leaving your business vulnerable to discrimination charges.

It’s also worth noting that if you make your standards too high and you immediately deny an application based on the background check results then you could be missing out on amazing applicants.

The key here is to ensure that you keep standards high from the outset. All prospective employees need to know in advance about your way of dealing with ‘failed’ Police Checks. If you don’t, or you keep changing the bar, then you could face charges of discrimination by the Equal Opportunities Commission.

Can You Legally Refuse A Job Application after a Police Check?

If a police check comes back that shows convictions that are directly related to the offer of employment, then you’re legally entitled to either review or withdraw the offer. In those cases, if an applicant believes that they have been discriminated against they can make a complaint to the Equal Opportunities Commission.

For example, if you run a financial business and an applicant’s police check comes back showing convictions for theft, fraud, or dishonesty, then you have legitimate cause to deny that application.

Some employment types are prohibited from having a criminal conviction. Doctors, caregivers, and lawyers all being examples where some kinds of convictions on a criminal background check will mean immediate refusal of a job offer, or dismissal if the person is already working.

At its core, if a potential employee or an existing member of the team undertakes a Nationally Coordinated Criminal History Check and results are considered to be too high a risk, then the law states that you do not have to employ or retain that person.

It’s important to get the balance right. It means comparing the correlation between the type of conviction they have and the relevance to the role that they have applied for. It also means ensuring that the business itself is protected against reputational issues or the threat of litigation.

Being Sued For Criminal History Discrimination

In most Australian states (not including Victoria), an applicant can file a complaint against your business if they believe that they have been discriminated against in the recruitment process. Complaints like this are submitted officially to the Equal Opportunities Commission and are enforced by the Australian Human Rights Commission Act of 1986.

So if your process for evaluating the importance of specific convictions on a police check certificate is fairly stringent, your job adverts need to reflect that.

The state of Victoria is slightly different in that legislation there only protects existing employees and not any potential ones.

Overlooking a Criminal History Check that’s Unsatisfactory

All businesses and organisations have their own recruitment processes. Only if those processes result in a high risk for the public will the authorities intervene. Those authorities will also get involved if the employment process breaks legal employment procedures.

So if your business decides that overlooking certain convictions is perfectly acceptable then all company policy needs to communicate that fact. Likewise, if you take a more zero-tolerance approach to a nationally coordinated criminal history check that needs to be made as clear as possible from the outset of the recruitment process.

Taking a zero-tolerance approach to criminal history, while does help to eliminate any legal grey areas, can also mean that you limit the pool of talent that will apply for your advertised positions. That can be particularly frustrating if the convictions are not even vaguely relevant to the job.

One way to protect yourself and the business is to ensure that you don’t use a probationary status as a possible trigger for dismissal in the event of a ‘failed’ criminal history check. Ideally, you should ensure that your recruitment process includes the police check before you make any offers of employment. That includes probationary or otherwise.

By doing this, you don’t have to justify any particular reason for the application rejection. You don’t even have to mention the police check.

A criminal background check is one of the most important parts of recruitment due diligence. However, it needs to be more than a case of simply ticking a box and hoping for the best. Your entire employment policy needs to reflect your stance on convictions, types of offences, and relevance to each vacancy.

At its most basic, depending on the industry and the relevant official mandates, a potential or existing employee that ‘fails’ a criminal history check shouldn’t be overlooked.

As long as your business uses a fair and transparent process for the use of disclosed criminal records, then potential accusations of discrimination can be avoided. It’s an extremely sensitive area, and there is a lot of potential for mistakes to be made by both businesses and potential employees.

For lots of jobs in Australia, there is simply no need for a criminal record check. For those roles, the employer does not need to request information about criminal history. All employers need to read and understand Section 4 of the Australian Human Rights Commission. This states that to “decide whether a criminal record is relevant to the inherent requirement of the job”, you need to:

Identify the essential tasks, circumstances and requirements of the job
Assess whether criminal records are relevant to these tasks and requirements
Assess an individual criminal record against the inherent requirements of the job

When Should You Ask For a Criminal Background Check?

There are some useful considerations to take into account when it comes to finding the right time to ask for a criminal history check. Ideally, you should only request the police check for those applicants who have been shortlisted for the position. This helps to:

Avoid time-consuming and potentially unnecessary admin needs (processing a lot of consent to disclosure forms alone can take a lot of time)
Manage costs, since all police checks incur some form of fee
Minimise risks of seeing confidential information that’s simply not necessary

On the job application form and the advert itself, applicants need to be forewarned that an offer of employment is dependent on the findings of the police check. It should also be reiterated during the interview process.

It’s in your interest not to make any kind of job offer before you have received the results of a criminal history check. If you allow someone to start work, even for a probationary period, and their background check comes back with relevant convictions that make them unsuitable then you risk wasting business resources. It can also cause a lot of stress for the other employees.

Don’t forget the fact that although using a criminal background checking service like Worker Checks means that you get results quickly (usually within one business day), if a check is flagged for manual review it can take weeks for the certification to be emailed to you. This happens in around 30% of applications.

If you need to fill a position quickly, any delays in submitting your request for a criminal history check can be a problem. In those cases, you need to gain consent from the relevant applicants to get that police check process started.

Convictions of Existing Employees

Plenty of businesses and organisations will require that their workforce update their police checks regularly. In many cases, a member of your workforce might have received a conviction while employed by you. The good news is that the way to handle this issue is very similar to that when presented with an applicant with convictions.

It is up to you and your business management how you handle this situation. Ideally, if the offence is not relevant to the role of the employee and presents no risk to the business, then leniency is highly advised.

Overall, the more information that an employer has about their applicants and employees, the easier it is to exercise  more reasonable judgement when evaluating potential connections between the requirements of a position and a criminal record.

The need to remain transparent is essential. Employers will inevitably take longer to check an application from someone with a criminal record. This means additional pressure on applicants.

Whatever system you establish for when to request an Australian Nationally Coordinated Criminal History Check and how you evaluate convictions in terms of the position, each decision needs to be made on a case-by-case basis. Look at the basic and inherent requirements of the role that they will be doing and the tasks that they will be expected to do.

A police check that comes back with convictions should never mean an absolute blanket policy of refusal (unless the vacancy is in a mandated industry or a role that means close contact with vulnerable groups).

In Summary

If a potential employee fails a criminal record check, it needs to be assessed according to the requirements of the vacancy. In many cases, you’ll find that the connection between the job and the criminal record is clear and a decision can be made easily. This is easier if your business or organisation deals with particular people or is a relevant industry.

Police checks will only provide some very basic information, and they will not include any specific details about the circumstances of a conviction. That can make it harder for an employer to understand if a conviction is relevant to a position. In those cases, an honest and transparent discussion with the applicant will need to be conducted. This will allow them to provide any relevant information.

This allows you to more professionally consider the relevance of the criminal record, the seriousness of the offence, and even factors like the age the applicant was when the crime was committed.

Conduct the right criminal background check and respond to it in the right way and your business will only benefit.

 

Please read this linked article with information on why police checks may be delayed.

Do Dropped or Dismissed Charges Show up on a Police Check?

Do dropped or dismissed police charges show up on a Police Check?  This is a very common question that gets asked at Worker Checks.

Having a conviction or other disclosable court outcome on your Police Check is a situation that can cause some difficulty with employers or other businesses that require your National Police Check. A conviction in your criminal history may set you back in aspects including;

• Seeking employment
• Getting a volunteer role
• Getting a license, accreditation or other purposes.

If a court does not record a conviction or the charges against a person are dropped or dismissed, no conviction or disclosable court outcome will show up on a police check result.

What are Dropped or Dismissed Charges?

The Court will drop any charges against you if any of the following occurs during the hearing;

• The victim refuses to cooperate

Where the alleged victim attempts an unfounded or unserious action toward an allegedly innocent perpetrator. Examples may include;

–  Failing to appear in court,
– Flouting all court deadlines and orders
– Refusing to provide a witness or evidence in court

 

• There is insufficient evidence

Every charge the victim/prosecutor brings must be backed by evidence. All this evidence must be tendered in court to back up the charge.

However, if the victim or prosecution team cannot provide evidence to back up their claims, the court will dismiss the charge. The court usually considers such issues as “waste of court resources”.

 

• New information resurfaces that places doubt over previous evidence

If additional, or more credible evidence is provided to the court that refutes, or places doubt on previously evidence, the court will likely dismiss all previous charges and pronouncements.

• The prosecutor/victim drops the charge

The prosecutor agrees to an out of court settlement; before the trial, or drops all charges during the trial. Once the prosecutor announces their position to the judge, the court will dismiss the case. When the court drops your charges, they will acquit you and all other defendants and close the case.

Therefore, Dropped or Dismissed charges do not show up on a police check in Australia as there is no conviction recorded by the court, and hence there is no disclosable court outcome.

What offences show up in a Police Check

A police check discloses a person’s criminal history as relating to the purpose stated in the application.

If you apply for a Police Check, here are some of the offences you may find;

• Convictions/Charges against corporate organizations
• Sexually related offences
• Traffic charges for which an individual is convicted in a court
• All Sentences and Convictions
• Pending court charges and offences
• Other offences not under the Spent Convictions Scheme

What are Non-Conviction Offences?

Aside from Dropped or Dismissed charges, there are other ways a person can avoid a conviction in their criminal record. If the offender agrees to certain pre-stipulated agreements/orders, the court will grant them non-conviction sentencing.

Non-conviction sentencing means the candidate does not have a conviction record. However, it can be disclosed in their Police Check depending on the purpose of the check and the agreements

Under the Crimes (Sentencing Procedure) Act 1999 (NSW), the court can use its discretion to order any of this non-conviction sentencing;

1. Section 10 (1) (a)

The court will give such orders where there is a finding of guilt but dismisses it without recording a conviction against the offender.

1. Section 10 (1) (b);

The court will issue non-conviction sentencing of this kind where there is a finding of guilt and decides to release the offender on a Conditional Release Order (CRO). However, the (CRO) must fall under section 9 (2) of the Crimes (Sentencing Procedure) Act 1999.

1. Section 10 (1)(c)

The court will discharge an offender without recording a conviction if they enter into special agreements. It will include the offender being part of intervention programs and other special conditions stipulated in court.

Spent Convictions: Depending on the State’s legislation or the Spent Convictions Scheme, some offences are not included in your Disclosable Court Outcomes.

Spent convictions are expunged from an individual’s updated Police Check. However, several conditions make an offence eligible for the spent conviction scheme. Some of these conditions are;

• Ten (10) consecutive years of waiting period elapses since the person was convicted of the offence (in an adult court).
• Five (5) consecutive (3 for Juveniles in NSW) years of the waiting period elapses since the person was convicted of the offence (in a youth court/as a juvenile).

It also follows that;

• The individual must not be convicted of any punishable offence during this waiting period, or the period restarts
• If a jail term is imposed, the crime-free period begins after the jail term.
• Convictions stipulated by the court; the individual meets special conditions (community works, therapy, self-quarantine, and co.)

What is the impact of non-conviction sentencing?

Most non-conviction sentencing will not show in your criminal records after you meet the agreement or conditions of the orders. And in most cases, you do not have to disclose the details of this record to an employer or any other person.

If your charge is dismissed under Section 10 (1)(b), the records will remain in your criminal history for the duration of the order. If your conditional release order was for 10 months, the offence remains in your national criminal record for that period.

Can I apply to have my offences withdrawn?

An accused person can apply to have these charges withdrawn before the Magistrate hears the matter. Some examples where the person can apply for a withdrawal includes;

• In cases where the Police acted inappropriately,
• The evidence used was illegally obtained
• Where the case is a trivial one per State/Territory laws

If the court approves of your application, all charges against you will be dropped/withdrawn. And you will not face further charges for that offence nor have it in your criminal records.

Such applications can be submitted to the Director of Public Prosecutions (DPP).

Offences that do not show in your Police Check

If an offence or conviction does not show on your Australian criminal history check, you have the right of no disclosure.

Also, such convictions cannot be used to assess you in cases where your Police Check certificate is required.

If you are charged for an offence; discuss with your lawyers if the prosecution or victim will agree to drop the charge on special arrangements. However, if this is not possible, you can inquire about a diversion program or other intervention programs.