Background and reference checks in Australia
Reviewed by Mellow Editorial Team, HR & payroll content team
Background and reference checks are legal in Australia provided they are relevant to the role, handled consistently, and carried out with the candidate's knowledge and consent. Done properly, they protect your business and are straightforward to run.
Why checks matter and where the law sits
Australian privacy law — primarily the Privacy Act 1988 and the Australian Privacy Principles (APPs) — governs how you collect, use and store personal information about job candidates. Employers covered by the Act (generally businesses with an annual turnover above $3 million, plus some smaller ones in specific sectors) must not collect more information than is reasonably necessary for the purpose.
State and territory equal opportunity laws add another layer: you cannot use checks to screen for protected attributes such as age, disability, pregnancy or criminal history in circumstances where that history is spent or irrelevant to the role.
The practical rule is simple. Only collect what is genuinely relevant to the job, tell candidates what you are collecting and why, and get their written consent before you start.
Getting consent right
Consent should be explicit and in writing — a checkbox on an application form is not enough for most checks. Use a dedicated consent form that spells out:
- what checks you intend to run
- who will conduct them (you, a third-party screening provider, or both)
- how the information will be stored and for how long
- that the candidate has the right to access the results
Obtain consent after you have made a conditional offer, or at least after you have shortlisted the candidate. Running invasive checks on every applicant before shortlisting is hard to justify under the APPs and creates unnecessary data-handling obligations.
Reference checks: what to ask and what to avoid
A reference check is a conversation, not an interrogation. Speak with direct managers where possible — peers and subordinates give a partial picture at best.
Questions worth asking:
- What was the nature of the working relationship and how long did it last?
- What were the candidate's key responsibilities?
- How did they handle competing priorities or a high-pressure period?
- Would you rehire them? If not, why not?
- Is there anything you think I should know that would help them succeed in this role?
That last question often surfaces more than a direct query would.
Questions to avoid: anything touching on protected attributes — health, family situation, union activity, or how many sick days they took (which can imply disability or caring responsibilities).
Be consistent. Ask broadly the same questions across all final candidates for a role so you can compare responses fairly.
Employment and qualification verification
Verifying what a candidate has told you is distinct from a reference check. This is simply confirming facts: dates of employment, job titles, and whether they hold the qualifications they claim.
For employment history, contact the HR department of previous employers directly. Many organisations will confirm only dates and title — that is still useful if a candidate has claimed a more senior role or a longer tenure than they actually held.
For qualifications, contact the issuing institution or use an accreditation body. Some industries — financial services, healthcare, legal, construction — require licences or registrations that can be verified through a public register. Check these registers yourself rather than relying solely on a document the candidate provides.
Criminal history checks
A police check through the Australian Federal Police or an ACIC-accredited agency returns a summary of disclosable court outcomes. Some states also have working-with-children checks and working-with-vulnerable-people checks that are mandatory for certain roles — these are separate to a national police check and must not be treated as interchangeable.
Not every role warrants a criminal history check. The check should be proportionate to the risk: a role involving unsupervised access to children, vulnerable adults, cash handling, or sensitive personal data justifies one; most office roles do not. If a check does disclose a history, assess it against the specific requirements of the role rather than applying a blanket exclusion. A spent conviction must not be taken into account in most jurisdictions.
Handling the results and storing the records
If a check reveals information that changes your decision, you are generally required to give the candidate an opportunity to respond before you withdraw an offer. This is both legally prudent and fair practice.
Store check results securely, separate from the general personnel file if possible, and retain them only as long as necessary. Under the APPs you must take reasonable steps to destroy or de-identify personal information you no longer need. For unsuccessful candidates, most employers retain records for no more than 12 months in case of a dispute, then destroy them.
Where you engage a third-party screening provider, make sure your contract with them requires equivalent privacy protections — you remain responsible for how your supplier handles candidate data on your behalf.
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