Criminal History Checks

Purpose

To outline the policy for conducting criminal history checks at the Office of the Information Commissioner (OIC).

Scope

All OIC employees (excluding statutory appointees) and individuals applying for employment at the OIC.

This policy does not cover circumstances where an employee’s criminal history changes due to charges or conviction for an offence.

Human rights

The OIC is committed to respecting, protecting and promoting human rights. Under the Human Rights Act 2019 (Qld), OIC has an obligation to act and make decisions in a way that is compatible with human rights and, when making a decision, to give proper consideration to human rights.

Policy statement

The Information Commissioner is authorised to conduct a criminal history check when considering engaging a person to perform relevant duties at the OIC.

A criminal history check will be undertaken for all prospective employees that may be engaged at the OIC. The outcome of each criminal history check will be assessed by the Information Commissioner.

Existing OIC employees moving to different roles within the OIC may be required to undertake a criminal history check.

The criminal history check will include Queensland, the Commonwealth, other States and Territories jurisdictions as appropriate. A New Zealand criminal history check will be undertaken where an applicant has resided in New Zealand for a period of greater than 6 months in the preceding 10 years.

Engagement cannot commence with the OIC until a determination has been made regarding the relevance of the criminal history to the work being undertaken, unless an exemption is granted by the Information Commissioner.

Written Consent

A criminal history will only be obtained with the written consent of an applicant, however if an applicant does not consent, the Information Commissioner is not required to further consider the applicant for engagement.

The OIC will request applicants to complete a criminal history request form and provide suitable certified documents to confirm proof of identity to obtain a criminal history. Only applicants recommended for engagement will be screened for criminal history.

If an applicant is included in a suitability list following a recruitment and selection process, and subsequently considered for employment, the applicant will be requested to complete a criminal history request form.

If an applicant does not provide written consent and proof of identity within 7 days of the request and provides no reasonable explanation for not providing the required documentation, the applicant may be considered to have refused consent.

Criminal History Assessment

Having a criminal history does not automatically prevent an applicant from being offered employment at OIC.

The Information Commissioner will assess an applicant’s suitability to perform the duties which required criminal history screening. Each assessment is made on a case-by-case basis.

In making the assessment the Information Commissioner will consider:

the relevance of any offence to the role at the OIC
the seriousness and frequency of any relevant offence
the amount of time elapsed since any relevant offence occurred and the penalty imposed
whether any relevant offence is still a crime; and
any relevant work history of the applicant in the Queensland public sector.

Natural Justice

Natural justice will be afforded to an applicant if their criminal history may adversely affect a decision to offer them employment at the OIC. The applicant will be given the opportunity to provide a written submission relating to their criminal history. The Information Commissioner will consider the criminal history and the written submission provided by the applicant in deciding whether to offer employment to the applicant.

Documentation management and confidentiality

Strict confidentiality of criminal history information will be observed at all times and managed in accordance with the Information Privacy Act 2009 (Qld).

The OIC will store criminal history check records in a confidential and secure location until the expiry of the public service appeals and judicial review timeframes, after which time all documents will be destroyed. Information relating to criminal history check records may include:

a completed criminal history request form
correspondence to or from the Queensland Police Service and/or New Zealand Police
correspondence to or from the applicant regarding the criminal history check process
any documents related to the assessment of suitability or the reasons for finding the applicant unsuitable to perform relevant duties as a result of criminal history checking.

Engagement of contractors

Contractors (including recruitment agency staff) are not able to commence work with the OIC until a criminal history check has been untaken by either a third-party provider or the OIC and approved by the Information Commissioner.

Appeals

A current public sector employee may be able to lodge a grievance about a decision not to employ them or to make changes to their employment arrangements as a result of an assessment of suitability for employment. The directive relating to individual employee grievances should be referenced for further information about employee grievances.

A current public sector employee who is aggrieved by a decision relating to their suitability for employment may be able to lodge a fair treatment appeal in the Queensland Industrial Relations Commission.

Individuals who are not currently employed within the Queensland public service do not have the right of appeal against an adverse criminal history decision. However, the applicant may request a statement of reasons for an adverse criminal history decision under the Judicial Review Act 1991 (Qld).

Roles and responsibilities

Role	Responsibilities
Applicant	Provide consent for a criminal history check in a timely manner. Provide relevant proof of identity to accompany the request for a criminal history check in a timely manner.
Human Resources	Ensure all documentation in relation to criminal history checks is managed in accordance with this policy. Ensure information provided to the Queensland Police Service or New Zealand Police is complete. Provide advice and support to applicants, managers, selection panel members, and the Information Commissioner in the administration of this policy.
Information Commissioner	Assess and determine whether an individual should or should not be offered employment to a role or volunteer/student placement because of their criminal history. Consider human rights when making decisions about criminal history checks.

Definitions/glossary of terms

For the purposes of this policy and related policy documents, the following definitions apply:

Term	Definition
Applicant	All OIC employees (excluding statutory appointees) and any individuals applying for employment at the OIC.
Certified documents	Documents certified to be true copies of the original by a justice of the peace, commissioner of declarations, barrister or solicitor.
Criminal history	The conviction/s for criminal offences recorded against a person. Criminal history does not include spent convictions (for example, quashed convictions, pardons or those convictions for which a person was not sentenced or where the rehabilitation period has ended). Refer to Suitability for employment (Directive 08/23) for further information.
Proof of identify	Proof of identity may be one of the following, (providing that the document or documents show between them the person’s full name, previous name/s, address, date of birth and signature): two primary identification documents one primary identification document and one secondary identification document Primary identification documents: birth certificate, citizenship certificate, current Australian or overseas passport, current Department of Immigration travel document, current driver’s licence, or current proof of age card. Secondary identification documents: current identification card (issued by the Commonwealth, State or Territory) as evidence of the person’s entitlement to a financial benefit (for example, Medicare card, pensioner concession card), financial institution cards or statements, student identification cards issued by an Australian educational institution or recent notice of assessment issued under the Income Tax Assessment Act 1997 (Cwlth).
Relevant duties	Duties, other than child related duties, that the Information Commissioner decides requires criminal history checking as part of the assessment of the person’s suitability for employment.