Employment with a criminal record
EMPLOYMENT WITH A CRIMINAL RECORD
When you apply for a job, you may be asked to undergo a background check into your criminal history. It is important to understand what your employer has a right to know about your criminal history and what they do not.
Consent to disclose criminal records
As part of the job application process, an employer or an employment agency may ask you about your previous criminal history. There is no overarching rule that says you must tell an employer about previous criminal convictions. An employer may ask you to complete an application to conduct a criminal history check, including asking for your permission for the employer to receive the results of the check. You will need to decide whether you want to complete this application.
An employer should not ask for information about your criminal record that is not relevant to the inherent requirements of the job. Employers cannot ask for information about your criminal record in order to unlawfully discriminate against you. Once you start employment, your employer does not have a general right to make further enquiries about your criminal history.
In some cases, you do not have to tell an employer about criminal convictions that occurred some time ago. This is known as a spent conviction, and includes if:
• You were convicted of an offence as an adult, that conviction will be spent after 10 years, as long as you have not been convicted of an offence punishable by imprisonment or spent any time in prison during the 10 year period.
• You were convicted in the Youth Justices Court, your conviction will be spent after 5 years. Your conviction will not be spent if you received a prison term of more than 6 months, whether you served time in prison or not.
• You were under 18 years at the time of the offence and were convicted in a court other than the Youth Justice Court, the conviction will be spent after 10 years, but you may be able to make an application to have your conviction spent after 5 years.
• A judge at your trial ordered that no conviction be recorded, that offence will be treated as a spent conviction.
However, some criminal convictions, such as sexual offences, cannot be spent.
Although a spent conviction is noted on your criminal record, it will not appear on a criminal history check and in most cases you will not have to disclose it.
However, there are some exceptions to this. For example, you need to tell an employer about any spent convictions if:
• You apply for a job as a police officer or Justice of the Peace; or
• You will be working with vulnerable people, such as children, or people with a disability or mental illness.
There are laws that make it an offence for people who, without your permission, tell other people about your spent record.
You should talk to a lawyer if you are not sure when or whether you need to tell a potential employer about a conviction.
Discrimination for irrelevant criminal records
In the Northern Territory, it is illegal for an employer to discriminate against a potential employee because of an irrelevant criminal record, unless the discrimination is because the employee cannot adequately perform the inherent requirements of the job.
An irrelevant criminal record is a:
• Spent record; or
• A record expunged under the Expungement of Historical Homosexual Offence Records Act 2018 (NT)
• A record relating to arrest, interrogation or criminal proceedings where:
• no further action was taken in relation to the arrest, interrogation or charge of the person;
• no charge has been laid;
• the charge was dismissed;
• the prosecution was withdrawn;
• the person was discharged;
• the person was found not guilty;
• the person’s finding of guilt was quashed or set aside; or
• the person was granted a pardon.
A criminal record will also be irrelevant where the circumstances around the offence that a person was found guilty of are not directly relevant to the situation in which the discrimination arises. There is no set definition of what will be an inherent requirement of a job, but it is something that is essential to the position. An employer should consider the nature of the job and the duties required as part of the job against factors such as:
• the nature of the offence;
• the number of offences;
• the time since the offence; and
• the age of the offender at the time of the offence.
Each situation should be assessed on a case-by-case basis.
If you are applying for a job that requires you to come into contact with children, you may be required to obtain a Working with Children Clearance and hold an Ochre Card.
Employers are responsible for making sure that an employee working with children has a valid clearance. Part of the process for obtaining the clearance is the requirement that a National Criminal History Record Check be conducted. Applications are made through SAFE NT, a unit of the Northern Territory police.
A Working with Children Check will largely focus on gaining information around certain offences, particularly sexual, violent or drug related offences involving children. Once you are issued with an Ochre Card, you have an ongoing obligation to tell SAFE NT about any relevant change in your circumstances including any charges relating to a disqualifying offence. The Screening Authority will then reassess your eligibility to hold an Ochre Card.
Darwin Community Legal Service
Freecall: 1800 812 953
Phone: (08) 8982 1111
Safe NT Freecall: 1800 723 368
© Darwin Community Legal Service 2022: Non-profit community groups have permission to reproduce parts of this publication as long as the original meaning is retained, and proper credit is given to DCLS as the publisher.
Disclaimer: The information contained in this publication is a guide to the law in the Northern Territory. It is not a substitute for legal advice. You should talk to a lawyer about your particular legal issue. The information contained in this factsheet is current as of January 2022.