By Ugur Nedim and Sonia Hickey
Many employers across Australia require a criminal record check before an applicant is able to commence employment.
And those who wish to travel to, or work in, certain overseas counties may also need to obtain one.
Criminal history checks will always be required for “child-related work“, and before a child can be fostered or adopted.
What is a criminal record check?
The most common criminal record check is known as a National Police Check (NPC).
It is essentially an outline of a person’s criminal history. Checks can be done on anyone living in Australia, citizens and non-citizens.
Employers will often require a check as part of the recruitment process, ostensibly to reduce the risk of fraud, larceny and other criminal activity, and to ensure prospective employees are of good character.
Anyone can apply for an NPC and provide it to a prospective employer.
If the employer wishes to request an NPC on a person’s behalf as part of the recruitment process, they are required to obtain the person’s written permission – usually in the form of a pro forma document that is filled out, signed and dated.
The employer will often provide a written policy outlining the criminal record information considered relevant to the position that is being applied for, but is not strictly required to.
While many employers now require an NPC, the check is invariably required for government positions, and jobs where the applicant will be working with children or other vulnerable people.
And as an NPC is only valid on the date of issue, an applicant may be required to seek an updated check if it has been some time since one was obtained.
Who can apply?
Getting an NPC is fairly straight forward – any NSW resident over the age of 14 can apply for one.
Those who do not normally reside in this state may be asked to apply in their usual state of residence.
The information for an NPC is sourced from the National Names Index (NNI), which stores data from across the nation.
What details are disclosed?
When the check is complete, a certificate will be issued detailing all “disclosable court outcomes”.
These outcomes include:
- “unspent” convictions for criminal offences (including ‘major traffic offences’ such as drink driving and driving whilst disqualified),
- unexpired good behaviour bonds for findings of guilt with no conviction (eg ‘section 10 bonds’ (now conditional release order without conviction) which have not finished),
- outstanding criminal charges, and
- unfinalised criminal court proceedings.
A frequently asked question is whether an expired bond for a finding of guilt without a conviction (eg a section 10 dismissal or conditional release order) is a disclosable court outcome. The answer is ‘not normally’ – it should not come up on an NPC; see section 8(4) of the Criminal Records Act 1991 (The ‘CRA’).
However, there is an exception to this general rule. Under section 7 of the CRA, certain ‘convictions’ are not capable of being “spent” (ie of lapsing).
These comprise convictions (or findings of guilt, as under section 5 of the CRA a ‘conviction’ includes a finding of guilt):
(a) for which a prison sentence of more than 6 months was imposed,
(b) for sexual offences,
(c) imposed against bodies corporate, and
(d) otherwise prescribed by the regulations.
‘Sexual offences’ include those under the following sections of the Crimes Act 1900: 61B-61F, 65A-66D, 66F, 73, 74, 78A, 78B, 78H, 78I, 78K, 78L, 78N, 78O, 78Q, 79, 80, 91A, 91B and 91D-91G, and under section 5 of the Summary Offences Act 1998.
An NPC will not normally disclose outcomes recorded under another name or alias, unless the applicant has disclosed these details in their application, or has submitted a fingerprint.
It will also omit information that has yet to be recorded in the NNI due to the time delay between the court outcome and the updating of the NNI, and offences prosecuted by non-police organisations if the details have not been submitted to the NNI.
What is a spent conviction?
A spent conviction is one which does not need to be disclosed by an applicant (eg a job applicant) and which, subject to section 7 of the CRA (above), should not appear on an NPC.
A finding of guilt without a good behaviour bond (eg section 10(1)(a) dismissal) will be ‘spent’ immediately and, as outlined, a finding of guilt with a good behaviour bond will normally (ie unless it is an outcome listed in section 7) become spent upon the expiry of that bond.
A conviction will otherwise be spent on completion of the relevant “crime-free period” (other than for convictions in the Children’s Court) which, under section 9 of the CRA is:
Any period of not less than 10 consecutive years after the date of the person’s conviction during which:
– the person has not been convicted of an offence punishable by imprisonment, and
– the person has not been in prison because of a conviction for any offence and has not been unlawfully at large.
Under section 13 of the CRA, it is a criminal offence punishable by up to 6 months in prison and a $5,500 fine to access or disclose spent convictions without lawful authority.
However, section 15 stipulates that the requirements of non-disclosure do not apply to a check undertaken in relation to:
- an application by a person for appointment or employment as a judge, magistrate, justice of the peace, police officer, member of staff of Corrective Services NSW,
- an application by a person for a working with children check clearance under the Child Protection (Working with Children) Act 2012, or to the assessment of the holder of a clearance under that Act, or
- a convictionof a person for arson or attempted arson if the person seeks to be appointed or employed in fire fighting or fire prevention.
The certificate resulting from an NPC is a government document and is printed with unique security features which attest to its authenticity, and it is a criminal offence to alter the document or produce a fake one.
Working with children
Pursuant to section 15 of the CRA (above), Working with Children checks can disclose a broader range of matters than a standard NPC.
For this reason, most relevant organisations will find a Working With Children check sufficient for the purposes of engaging in “child-related work”.
How to apply for an NPC
An application can be made for a NPC by filling out the online form.
The fee can be paid online or at the police station.
Three forms of personal identification must be provided, which are then checked for authenticity.
The identification must be original and current, contain a photo, a signature and a date of birth.
The list of acceptable identification is contained on the NSW Police Website.
Once an application is made, it can take several weeks for the identification information to be verified and for the certificate to be issued.
How much does a criminal record check cost?
The current costs are as follows:
- National name and date of birth check: $55.90
- National name, date of birth and fingerprint check: $188.10
- National name and date of birth check for volunteers working in Commonwealth supported aged care: $15
What if I dispute the findings of the check?
If an applicant disagrees with the information contained in a check, a form can be completed and sent to the Criminal Records Department of the NSW Police Force, who will investigate the matter.
Supporting documentation may be provided to support the assertions.
The investigation can take several weeks to complete, so it’s important that any supporting documents be sent at the time of the application.