National Privacy Principles Relevant to Criminal Record Information

The information on this webpage is to be read in conjunction with this disclaimer:
Australian National Character Check (ANCC) makes every effort to provide updated and accurate information to its customers. However due to the continuously changing nature of legislations for the Commonwealth and various States and Territories, it is inevitable that some information may not be up to date. The information on the website is general information only. The contents on the website do not constitute legal or professional advice and should not be relied upon as a substitute for legal or professional advice. While we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, suitability, accuracy or availability with respect to the information.

Most organisations require a Nationally Coordinated Criminal History Check from the candidates they employ for various reasons.

However, criminal record information should be collected, used and disclosed in accordance with the Privacy Act 1988 (Privacy Act).

Requesting a Nationally Coordinated Criminal History Check

An employer can request the criminal records of a candidate that they shortlisted for employment. This does not go against any legislation in Australia nor employment acts. In some circumstances, the Australian government mandates that employers who recruit into sensitive positions request for a Nationally Coordinated Criminal History Check (for example, checks for the purpose of aged care employment).

However, while dealing with criminal records of candidates, employers must abide by the Privacy Act.

What are the National Privacy Principles employers must follow?

1. Collect only relevant records

Any organisation covered under the Act must only request or collect the necessary record information. It means the criminal record they demand or request should be related to the role or job they offer.

Where the record will not impact the role/job, it may be improper for the employer to make it mandatory.

2. Using, interpreting and disclosing the Records

When using or disclosing the records information of the candidate, the employer should use them as it relates to the role or job the person applied for. It may be a breach of privacy if the employer applied or used the Criminal records information outside of the reason they originally specified.

When disclosing the criminal records, it must strictly be with the informed consent and approval of the candidate. An example could be where the employer needs to disclose the personal information to protect their safety or health at work. It is also acceptable where the disclosure is necessary to a part of an investigation or reporting an unlawful activity as per the law.

3. The veracity of the Criminal record and data quality

The employer is mandated by the Act to ensure that all information in the criminal records is not just correct, but of the right quality, up-to-date, and sufficient for the purpose.

4. Securing and disposing of records

When an applicant trusts you with their records, take all intentional steps to ensure that their records are safe and free from public servers.

Also, when you are done with a Criminal record/other personal information, especially when the applicant does not get the job, employers should know how to dispose of the record information without compromise.

Securing a candidate's records is very important, as otherwise may lead to serious sanctions.

Australian National Character Check's business portal for business and enterprise users assists employers and decision makers to comply with the secure storage and disposal requirements of Nationally Coordinated Criminal History Check information.

For legal entity organisations, Nationally Coordinated Criminal History Check results should not be stored for a period longer than 12 months (electronic or hard copy). The results should be securely destroyed within 12 months time from the date of issue.

5. Transparency and Integrity

When an employer advertises for a vacant position, they must outline and explain all the needed requirements. If a Criminal record is one of them, they must explain to the candidates;

• How it will be assessed;
• The inherent requirements;
• The type of offences they are concerned;
• And other details under theory internal policy and procedures.
• The policies should be “written” and not contrary to legislation or the Australian Human Rights Commission (AHRC) Act.

Furthermore, the employer/organisation must also abide by all the policies it states.

6. Access to records and corrections if required

Where an organisation obtains the criminal record on behalf of the person (with their informed consent) or has received other records, they should share them with the candidate. Although the organisation may not be mandated to share where some exceptions under the NPP6 apply.

If the individual has a problem with any of the records or feels they are wrong, they can attach a statement to the issuing agency about this report.

It is unfair to assess a person based on a record they did not view or know about. Usually, this can lead to grounds for a case of discrimination.

7. Transborder Data

It is important to note that NPP 9 does not allow an organisation from disclosing personal information to another person that is based in a foreign country which is not subject to information privacy rules that are comparable with Australia's Privacy Act. There may be exceptions where the organisation has the individual's consent, or in other limited circumstances as permitted by law.

8. Sensitive information

For all organizations under the Privacy Act and other purposes of the NPP, criminal record information is sensitive information. However, some exemptions are specified under the National Privacy Principle 10.1.

Under NPP 10, it is illegal to collect sensitive information of a person if they did not consent to such checks.

What is the Privacy Act?

The disclosure/handling and use of criminal records must be done following the stipulations under the Privacy Act. Under privacy laws, a person's criminal record is treated as sensitive information. Additional protections are given to sensitive information under these laws.

Even where exemptions may occur depending on the sector and the type of record, it is best practice for employers to follow privacy principles as closely as possible when dealing with information relating to a person's criminal record.

The privacy laws cover all areas where a Criminal Record is used in the Commonwealth of Australia.

Australian National Character Check's business portal for Nationally Coordinated Criminal History Checks

The ANCC® business portal assists approved business and enterprise customers of all sizes to comply with the privacy principles relating to Nationally Coordinated Criminal History Checks. Data is stored on secure servers within Australia. There are multiple layers of information security controls including user access controls.

Approved business and enterprise users can order, manage, track and view Nationally Coordinated Criminal History Check results for their candidates. The business portal has a number of other features to streamline pre-employment checks at business and enterprise level.

Business portal users can invite candidates to submit their pre-employment screening check and their candidates are guided through a secure online application and informed consent form.

Speak with ANCC's business and enterprise team for more information on the business portal.

Wrapping Up

Employers should endeavour to have a written policy (including privacy laws) that can easily be produced.

The employer should try to explain some of these principles prior to the recruitment process.

Copyright & Disclaimer

The content on this website is communicated to you on behalf of Australian National Character Check™ (ANCC®) pursuant to Part VB of the Copyright Act 1968 (the Act).

The material in this communication may be subject to copyright under the Act. Any further reproduction of this material may be the subject of copyright protection under the Act.

You may include a link on your website pointing to this content for commercial, educational, governmental or personal use.

The contents of this website do not constitute legal advice and should not be relied upon as a substitute for legal or professional advice.