When Can Employers Ask For A Police Check In Australia?

As a small business owner or startup founder, you’re probably wearing a lot of hats. You’re hiring, training, building culture, managing risk, and trying to grow - all at once.

So it makes sense that you might want a bit more certainty about who you’re bringing into your business. That’s where the question often comes up: can an employer ask for a police check?

This guide walks you through when it’s generally appropriate for an employer to ask for a police check, how to do it in a fair and legally safer way, and what to watch out for (especially around privacy, discrimination, and record-keeping).

While there isn’t one single “police check law” in Australia that covers every workplace scenario, there are practical legal principles that apply - and getting this right can reduce your risk of complaints, hiring disputes, and reputational damage.

Note: This article provides general information only and isn’t legal advice. If you’d like advice for your specific role, industry, or state/territory, it’s best to get tailored legal guidance.

What Is A Police Check (And What Does It Actually Tell You)?

A police check (often referred to as a National Police Check) is a document that may show certain disclosable court outcomes and charges, depending on the type of check and the purpose.

It’s important to understand what a police check is not:

• It’s not a “character reference” - it’s a limited snapshot of disclosable criminal history information.
• It’s not automatically a “yes/no” suitability answer - you still need to assess relevance to the role.
• It’s not a free pass to exclude someone - how you use the information matters.

Why This Matters For Employers

If you treat a police check as a blanket screening tool (“any record = no job”), you can create legal risk - especially where the history is unrelated to the inherent requirements of the role.

A better approach is to treat it as one input into a broader recruitment process, alongside references, skills, experience, and job-specific checks.

Can An Employer Ask For A Police Check In Australia?

In many cases, yes - an employer can ask. But the key question isn’t only “can you ask?” It’s also:

• Is it necessary for this role?
• Is it reasonable and proportionate?
• Have you obtained informed consent?
• Will you handle the information lawfully and securely?

If you’re asking candidates or staff to provide police check results, the strongest position is where the request is linked to genuine role-related risk.

Roles Where Police Checks Are Often Clearly Justified

Whether a police check is appropriate depends heavily on the nature of the work. Common examples where it’s often reasonable include roles involving:

• Working with children or vulnerable people (noting that a Working With Children Check is a separate process)
• Aged care, disability support, health services, or NDIS-related work
• Handling cash, financial authority, or sensitive financial systems
• Access to highly sensitive personal data
• Security, patrol, monitoring, or high-trust premises access
• Company vehicles or roles involving regular access to private property

If you’re not sure whether the risk profile justifies the check, it’s worth getting advice early - it’s much easier to set a defensible hiring process than to fix one after a complaint.

When Should You Request A Police Check (Candidate, New Hire, Or Existing Staff)?

Timing matters. The cleaner your process, the easier it is to explain (and defend) why you asked.

Option 1: During Recruitment (Before You Make An Offer)

You can request a police check during recruitment, but in practice it’s often better to do this:

• after an interview (once you’re seriously considering the applicant), or
• as part of a conditional offer (subject to checks).

This helps ensure you’re not collecting more personal information than you reasonably need from every applicant.

Option 2: Conditional Offer (Common For Startups)

A very common approach is:

• make a written offer, and
• state that employment is conditional on satisfactory checks (including a police check, if relevant).

This aligns well with a structured onboarding process and gives you a clear “off ramp” if something comes up that genuinely affects role suitability.

It also pairs naturally with having an appropriate Employment Contract that clearly sets expectations and includes any role-specific conditions.

Option 3: Existing Employees (More Sensitive)

Requesting a police check from an existing team member can be legally and culturally delicate. It may be reasonable if:

• their role is changing (for example, promotion into a higher-trust position),
• your client contract now requires it,
• there’s a regulatory requirement for the work, or
• there are safety-related reasons and the check is proportionate.

If you introduce police checks partway through employment, aim for consistency and transparency. Sudden, selective requests can look unfair (or discriminatory), even if that wasn’t your intent.

How To Ask For A Police Check The Right Way (A Practical Process For Employers)

If you want a police check process that is fair, repeatable, and less likely to trigger disputes, you’ll usually want to build it into your standard recruitment and onboarding workflow.

Step 1: Be Clear About Why The Check Is Needed

Ideally, your job ad or job description should state that a police check is required and why (in simple terms).

For example: “This role involves entering customer homes and handling customer property, so a police check is required.”

Step 2: Get Informed Consent

A police check contains sensitive information. As a baseline, you should obtain the candidate’s consent before requesting or collecting it.

Consent is also about ensuring the person understands:

• what you’re asking for,
• what the check is used for,
• who will see it, and
• how long you will keep it (if at all).

If your business collects personal information (which most employers do), having solid privacy practices matters. Many growing businesses formalise this with a Privacy Policy and internal processes for handling confidential information.

Step 3: Only Collect What You Need

One of the biggest practical mistakes we see is collecting too much information “just in case”. That can create unnecessary privacy risk.

As a general rule:

• only request checks that are relevant to the role, and
• avoid keeping copies longer than needed.

Step 4: Apply A Consistent Standard

Consistency is your best friend. If police checks are needed for a role type, make it a standard requirement for that role category - not something you apply selectively.

This is especially important for startups that scale quickly. A “case by case” approach can accidentally turn into inconsistency, which can be hard to justify later.

Step 5: Store Information Securely (And Limit Access)

If you receive a police check, treat it as sensitive personal information. Practical safeguards include:

• limiting access to people who genuinely need to review it,
• storing it in a secure HR folder (not a shared drive open to the team), and
• considering whether you can simply record that a check was sighted (rather than keeping a copy).

As your team grows, you may also want an internal policy suite (for example, within a staff handbook) to set expectations around privacy, conduct, and workplace processes. Many employers build this into a Staff Handbook.

What If A Police Check Shows Something? Assessing Risk Without Creating Legal Problems

This is where employers often feel uncertain. The police check comes back and shows a charge or conviction - what now?

From a risk-management perspective, it’s tempting to make a quick call. But from a legal perspective, you’ll usually want to slow down and assess the situation carefully.

Focus On Relevance To The Role (Not Just The Existence Of A Record)

A more defensible decision-making process usually considers factors like:

• Whether the issue is relevant to the inherent requirements of the role
• How long ago it occurred
• The seriousness of the conduct
• Any pattern of repeat behaviour
• Whether the candidate has an explanation (give them an opportunity to respond)

For example, a historic traffic offence may be irrelevant for an office-based marketing role, but more relevant for a role involving regular driving. A dishonesty-related offence may be more relevant if the role includes financial authority or handling cash.

Avoid “Blanket Rules”

A blanket policy like “any criminal history means you can’t work here” can be risky.

It may also lead to missing out on great talent - which is a real issue for startups operating in competitive hiring markets.

Be Careful About Discrimination Risk

Australia has anti-discrimination laws at federal and state/territory levels. Protections relating to criminal record can vary depending on the jurisdiction and the legal pathway (for example, some discrimination frameworks, industrial instruments, or human rights/commission processes may apply in certain contexts).

Even where “criminal record” isn’t a protected attribute under a particular law, decisions that aren’t based on the inherent requirements of the role can still create legal and practical risk (including unfair dismissal or general protections issues in some cases, as well as complaints to regulators/commissions and reputational risk).

As a practical step, document your reasoning. If you ever need to explain why a decision was made, “we assessed relevance to the role and the risks involved” is far stronger than “we just don’t hire people with records”.

What Policies And Documents Should You Have In Place?

If you’re going to ask for police checks (even occasionally), it’s worth setting up your employment paperwork so your process is clear and consistent.

Depending on your team size and risk profile, you might consider the following.

Key Documents To Consider

• Employment Contract: This can include conditions (like satisfactory background checks) and sets the foundation for the relationship. For many businesses, a tailored Employment Contract (FT/PT) is a practical starting point.
• Workplace Policies / Staff Handbook: Helps you set consistent processes for recruitment, onboarding, confidentiality, conduct, and privacy handling.
• Privacy Documentation: If you collect personal information from candidates and staff, a clear Privacy Policy and internal privacy practices help show you take data handling seriously.
• Confidentiality Controls: Many startups rely on confidentiality to protect customer data, pricing, product plans, or IP. This is often covered in contracts and reinforced in internal policies.

Should You Put Police Checks In Your Recruitment Policy?

If you’re asking for police checks regularly (or you operate in a regulated space), having a simple written recruitment policy can help.

It doesn’t need to be complicated - it can simply state:

• which roles require checks,
• when checks are requested,
• how checks are assessed, and
• how results are stored and who can access them.

This also supports a fair culture: your team knows what to expect, and you avoid ad-hoc decision making.

Key Takeaways

• If you’re asking for a police check, the safest approach is to ensure the request is reasonable, role-related, and proportionate.
• Be transparent about why you’re requesting a police check and obtain informed consent before collecting any results.
• A police check should usually be assessed based on relevance to the inherent requirements of the role - avoid blanket “record = no job” rules.
• Handle police checks like sensitive information: limit access, store securely, and avoid keeping copies longer than necessary.
• Strong hiring processes are easier to maintain when they’re supported by clear documentation like an Employment Contract and consistent workplace policies.

If you’d like help setting up an employment process (including when and how to request background checks) or putting the right documents in place, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.