Background Checks in Australia:Legal Requirements, Processes, and Best Practices

Background checks are now standard for most Australian employers. They help ensure a safe and suitable workforce, aiding informed hiring decisions. But these checks must comply with Australian law, which can be complex.

Understanding the requirements is crucial to ensure proper checks and avoid legal trouble. This article discusses background checks in Australia, focusing on what might be required of employers. We'll cover the different types of checks, the legal framework, and processes involved.

Legislations Affecting Pre-Employment Background Checks in Australia 

There are several legislations that govern pre-employment background checks in Australia. Here are some of them:

Worker Screening Act 2020

According to the Worker Screening Act 2020, someone is breaking the law if they work with children without passing the Working with Children Checks. As an employer, it is your legal responsibility to verify the validity of the applicant’s application number and clearance number. This can be done online. 

The Australian Human Rights Commission (AHRC) Act

This Act is responsible for promoting and protecting human rights in Australia. In the context of background checks, the AHRC ensures that these processes do not discriminate against individuals based on protected attributes (e.g., race, gender, disability) and their criminal record UNLESS the record is relevant to the industry or role. 

Privacy Act 1988

This Act is the cornerstone of privacy protection in Australia, governing the collection, use, and disclosure of personal information. It directly applies to pre-employment background checks, requiring organisations to handle personal data lawfully and transparently.

Background Checks in Australia Are Not Required, But They Are a Common, Crucial Practice  

Australian background checks as a whole are NOT required by law. However, they are still a common and crucial practice, considering:

• Specific Legal Requirements: As mentioned, certain roles may legally require employees or applicants to not have specific criminal records or to have passed particular checks (e.g., Working with Children Checks). In such cases, employers are obligated to request relevant records.
• Risk Mitigation and Ensuring Right Hire: Employers may choose to require background checks to reduce risks associated with hiring and to ensure they select the most suitable candidate for the position.
• Clear Disclosure in Job Ads: If an employer requires a background check, this must be clearly stated in the job advertisement, particularly when it involves checking criminal history.
• Written Consent: No one has the right to conduct pre-employment checks without obtaining written consent from the individual being checked. This is a fundamental requirement under Australian privacy laws.

Per the official guide of the Australian Government, there are 4 things that an employer may ask from candidates. These include a statutory declaration, stating that the information provided by the applicant is true, and 3 Australian background checks, namely:

• Police Checks
• Working with Children Checks
• Medical Checks

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Police Checks

The equivalent of criminal records checks in Australia, police checks are not required for all roles. However, there are cases where a job applicant must be verified to have no certain criminal record.  In such cases, it’s the employer’s duty to conduct the check. 

Furthermore, many employers also consider police checks as an integral part of their wider risk management strategy. After all, they can help prevent crimes like theft, procurement fraud, bribery and corruption, and cybercrime. 

Process

In general, there are three ways to conduct police checks as an employer in Australia: 

• Ask the candidate to present a Police Check Certificate
• Conduct the checks on their own
• Partner with a reliable background check provider, such as Veremark 

For the second method, note that the process varies depending on the territory. In Victoria, for example, organisations requiring less than 500 checks in a period of 3 years can contact relevant police service or an accredited CrimTac broker. 

The steps mostly include:

• Getting the applicant consent
• Verifying the applicant’s identity by submitting certain documents 
• Paying the fee 
• Having the applicant complete the form online or via post
• Wait 10 business days for the results 

If you partner with a reliable background screening agency, the steps are significantly reduced. With Veremark, all you need to do is order the checks you need - provide the candidate details, customise your requirements, and wait for the results to be delivered. 

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Best Practices

Below are some of the best practices when it comes to police checks in Australia:

• Request police checks only from shortlisted applicants 
• Only ask about criminal records if there is a clear connection between the job requirements and the criminal record. 
• It should be clear in job advertisements about any criminal record requirements.

Working with Children Checks

Working with Children Checks is different from Police Checks. If your business involves working with children, understanding Working with Children Checks (WWCC) is essential because they are a legal requirement in all Australian states and territories.

Process

Each state/territory has its own WWCC system with slight variations in names and processes. Remember to familiarise yourself with the specific requirements of your jurisdiction.

As for the process, the employees apply for WWCCs through their respective state/territory's online portal or service centre. Your obligation as an employer is to: 

• Verify the validity of an employee's WWCC before they commence work.
• Regularly check the status of your employees' WWCCs to ensure they remain valid.
• Keep records of all WWCC checks and their expiry dates.

Best Practices 

When it comes to Working with Children Checks, the following best practices apply:

• Clearly state the WWCC requirement in job descriptions and advertisements.
• Provide information and assistance to employees regarding the application process.
• Implement a system to track and manage WWCC renewals.

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Medical Checks

Employers have the obligation to ensure their employee’s health and safety while carrying out their role. As with police checks, medical checks are not a requirement for all industries or positions, but you may direct employers to undergo medical evaluation:

• If the role has specific physical demands or health risks.
• To assess if an applicant can meet the inherent requirements of the job.
• In industries with specific health and safety regulations.

Process

For medical declarations, ask applicants to complete a medical history questionnaire, disclosing any relevant health conditions.

If necessary, arrange for a medical examination conducted by a qualified healthcare professional. To streamline the process, it’s best to collaborate with a trusted background screening provider. Veremark offers Occupational Health Checks to determine a candidate’s medical fitness. 

Best Practices

A candidate’s health information is considered sensitive personal information. Considering this, please keep the following best practices in mind: 

• Ensure all medical information is kept strictly confidential and only accessed by authorised personnel.
• Only request medical information that is directly relevant to the job requirements.
• Avoid discriminating against applicants based on health conditions unless they directly impact their ability to perform the job safely and effectively.
• Obtain written consent from the applicant before conducting any medical checks or requesting medical information.

Right to Work Checks

As an employer in Australia, verifying the right to work for your prospective employees is a non-negotiable legal requirement. Failure to do so can result in severe penalties. This check confirms an individual's legal permission to work in the country, protecting your business and ensuring a lawful workforce.

Process

In general, the process involves checking the relevant documents to verify that the applicant has the legal right to work in the country: 

• Examine original documents like passports, visas, or birth certificates to confirm citizenship or visa status allowing work in Australia.
• Utilise the Department of Home Affairs' Visa Entitlement Verification Online (VEVO) system to validate work rights and any restrictions for non-citizen employees.
• Maintain thorough records of all right to work checks, including copies of relevant documents and VEVO checks, for each employee.

Best Practices

• Conduct right to work checks for every new employee before they commence work.
• Implement a system for periodically re-checking visa holders' work rights, especially as visa expiry dates approach.
• Keep records of all checks for a minimum of five years after an employee's departure.

For more information on the Work Permits or Visas in Australia, you may read this guide. Likewise, highly consider outsourcing your Right to Work Checks to speed up the process and ensure compliance. Learn more about Veremark’s pay-as-you-go offer here. 

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Background Checks in Australia: Beyond Legal Requirements

On top of Police Checks, WWC Checks, and Medical Checks, employers also conduct various checks that are not required in any industry, but are necessary to check suitability for the role and reduce risks. 

These include:

• Employment History: Verify an applicant's claimed work experience by contacting previous employers to confirm job titles, dates, and sometimes responsibilities.
• Education Verification: Ensure an applicant's qualifications are genuine by contacting educational institutions to confirm degrees, diplomas, or certifications.
• Reference Checks: Gain insights into an applicant's work ethic and skills by contacting references provided by the applicant, usually previous supervisors or colleagues. 
• Credit Reports: For financially sensitive roles, assess an applicant's financial responsibility through a credit check with their written consent, using an accredited credit reporting agency.
• Social Media Checks: Review an applicant's public social media profiles to glean insights into their character and online behaviour, focusing on publicly available, job-relevant information.
• Civil Litigation Checks: Uncover an applicant's involvement in civil lawsuits, such as bankruptcy or legal disputes, for roles demanding high trust or financial responsibility, with written consent and a reputable provider.

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What Background Checks Are Illegal In Australia?

Australian background checks are generally legal if they are conducted in compliance with relevant laws, such as privacy laws and anti-discrimination legislation. However: 

• Checking on spent convictions is illegal unless the employer has a specific legislative exemption. 
• Conducting background checks based on an individual's protected attributes, such as race, religion, gender, sexual orientation, or disability, is illegal under anti-discrimination laws. 
• Gathering irrelevant information that is not directly related to the job requirements is also prohibited. For example, checking an applicant’s credit history can be considered an invasion of privacy if that information has nothing to do with their role. 

Employers must ensure that their background check practices are fair, transparent, and relevant to the position being filled, while also respecting the privacy rights of job applicants.

Background Checks in Australia: Common Mistakes and How to Address Them

The complexities of background checks in Australia can be tricky, and even well-intentioned employers can stumble into common pitfalls. Here's a look at some frequent mistakes and how to avoid them:

• Overlooking Legal Requirements: Privacy laws and anti-discrimination legislation are strictly enforced in Australia. Ensure your checks comply with the Privacy Act 1988 and relevant state/territory laws.
• Relying on Outdated Information: Always verify information with original sources, such as academic institutions or previous employers.
• Failing to Obtain Consent: Informed consent is crucial. Clearly explain the purpose of the check and obtain written consent from candidates.
• Discriminatory Practices: Avoid asking questions or conducting checks that could reveal protected attributes like race, religion, or sexual orientation.
• Insufficiently Verifying Information: Cross-check information against official records and databases to ensure accuracy.

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Partner with Veremark for Compliant Hiring Success

The challenges discussed can be effectively addressed by partnering with a reliable background screening provider, like Veremark. 

We have the expertise and framework to conduct checks legally, ensuring compliance, and delivering accurate, thorough results. Our award-winning fully-automated system reduces errors and easily integrates into your current workflow, allowing you to combine relevant information for faster, more informed decision-making. 

With no long-term contracts and 24/7 global support, Veremark offers a seamless, pay-as-you-go experience. Choose Veremark for reliable candidate verification and build a trustworthy workforce effortlessly.