Employer Inquiries About Criminal Records in New Zealand
New Zealand law includes provisions, primarily under the Clean Slate Act 2004, that govern when an individual is required to disclose their criminal record to an employer and when an employer can ask about it. The general principle is designed to give eligible individuals a 'clean slate' for most employment purposes.
The Clean Slate Scheme
In New Zealand, the Clean Slate Act 2004 establishes a scheme where certain past criminal convictions are treated as if they do not exist for most purposes, including employment. This is referred to as having a 'clean slate' [Source: Clean Slate Act 2004, s 7].
Eligibility for a Clean Slate
An individual is eligible for a clean slate if they meet specific criteria, which include [Source: Clean Slate Act 2004, s 7(1)]:
- Having been conviction-free for at least seven consecutive years from the date of sentencing for their last offence.
- Not having been sentenced to a custodial sentence (such as imprisonment, corrective training, or preventive detention) at any time.
- Not having been ordered to be detained in a hospital as a special patient or special care recipient.
- Not having been convicted of certain specified sexual offences.
If these criteria are met, an individual is generally not required to disclose eligible convictions, and they are legally treated as if they have no criminal record [Source: Clean Slate Act 2004, s 7(2)].
Employer Obligations Under the Clean Slate Act
Where the Clean Slate Act applies, an employer generally cannot ask a person about eligible convictions [Source: Clean Slate Act 2004, s 10(1)]. If an employer does ask, the individual is legally entitled to respond as if they have no such convictions [Source: Clean Slate Act 2004, s 10(2)]. Furthermore, an employer cannot take into account or use information about eligible convictions for employment decisions, such as hiring or promotion [Source: Clean Slate Act 2004, s 10(3)].
Exceptions to the Clean Slate Scheme
There are specific circumstances and roles where the clean slate scheme does not apply, and full disclosure of a person's criminal history is legally required or permitted. These exceptions generally relate to positions of high trust or those involving vulnerable individuals [Source: Clean Slate Act 2004, s 19].
Examples of roles or situations where full criminal history disclosure is required include employment in [Source: Clean Slate Act 2004, Schedule 2]:
- Law enforcement (e.g., New Zealand Police).
- National security agencies (e.g., SIS, GCSB).
- The judiciary or as a prosecutor.
- Certain positions involving national security vetting.
- Working with children, young people, or vulnerable adults in specific specified roles, particularly where the employer is required to obtain a safety check under the Children's Act 2014.
- Applications for certain licences or permits (e.g., firearms licences, taxi driver licences).
In these exceptional cases, an employer (or the relevant licensing authority) is legally entitled to ask about and consider all convictions, regardless of whether they would otherwise be 'cleaned' under the Act [Source: Clean Slate Act 2004, s 19].
General Employment Law Considerations
The Employment Relations Act 2000 (ERA) governs the relationship between employers and employees in New Zealand. While the ERA does not directly address criminal record disclosure, it establishes overarching principles that apply to all employment matters, including where criminal records are relevant.
Good Faith
The Employment Relations Act 2000 requires employers and employees to deal with each other in good faith [Source: Employment Relations Act 2000, s 4]. This obligation of good faith involves being active and constructive in establishing and maintaining a productive employment relationship [Source: Employment Relations Act 2000, s 4(1A)]. If an exception to the Clean Slate Act applies and an applicant knowingly provides false or misleading information about their criminal history, this could potentially have implications under the principles of good faith or constitute a breach of contract.
Privacy Act 2020
The collection and use of personal information, including criminal record information, by employers is also subject to the Privacy Act 2020. This Act sets out principles for how agencies (including employers) should collect, hold, use, and disclose personal information [Source: Privacy Act 2020, Information Privacy Principles]. Employers must ensure that any collection of criminal record information is lawful, necessary, and for a legitimate purpose [Source: Privacy Act 2020, Information Privacy Principle 1]. The Clean Slate Act 2004 overrides these general privacy principles in specific circumstances, by either prohibiting the collection of 'clean slate' information or explicitly permitting the collection of full criminal history in exceptional roles.
Consequences of Non-Compliance
If an employer contravenes the Clean Slate Act 2004 by asking about or taking into account eligible convictions, they may be subject to a complaint to the Privacy Commissioner or, in some cases, other legal remedies [Source: Clean Slate Act 2004, s 26; Privacy Act 2020, s 77]. Employees or applicants who believe their rights under the Clean Slate Act have been breached may seek resolution through the appropriate channels.
When to Seek Independent Legal Advice
Individuals seeking clarity on their specific obligations under the Clean Slate Act, or who believe an employer has acted in breach of these laws, should consider contacting agencies such as Community Law Centres for free legal advice, or a private lawyer. Employers unsure about their obligations regarding criminal record checks for specific roles should also seek independent legal advice to ensure compliance with all relevant legislation.