Understanding criminal records

To check your criminal record in Victoria, you need to apply for a national police check. You can apply by post or online via the Victoria Police website at www. police.vic.gov.au (click on ‘our services’ then ‘national police checks and fingerprinting’). Both application processes require you to provide identity documents and pay a fee (the fee is $52.50, reduced to $19.70 for volunteers). There are also private companies that are accredited by the Australian Criminal Intelligence Commission that conduct checks of criminal records for a fee.

Your national police check will show your disclosable convictions for criminal offences, including where you were found guilty of an offence, the date of the offence, the offence for which you were found guilty, and the outcome. Spent convictions schemes control what criminal records can be disclosed by police when you ask for a police check.

Certain information will not be disclosed on your police check:

• a spent conviction for a Victorian offence (unless an exemption applies or you have requested a personal use check under Freedom of Information laws);
• an interstate or Commonwealth conviction that is spent under that state, territory or the Commonwealth’s spent convictions laws (unless an exemption applies).

The police check will not have your spent convictions on it unless the employer or agency has an exemption to receive that information. There are exemptions for:

• law enforcement agencies to collect, use and disclose spent conviction information so they can perform their functions;
• courts and tribunals;
• child protection, and child safety and wellbeing;
• working with children checks;
• disability worker accreditation or registration to work in certain industries;
• licences and registration.

The full list of exemptions can be found in the Spent Convictions Act 2021 (Vic) and Spent Convictions Regulations 2021, or via the the Department of Justice and Community Safety website (www.justice. vic.gov.au/spent-convictions).

Your police check usually does not include:

• not guilty outcomes;
• charges withdrawn (‘dropped’) by the police;
• on-the-spot fines and infringement notices that do not go to court (whether or not paid);
• Infringements Court orders;
• police cautions;
• details of a case dealt with under the Magistrates’ Court diversion program;
• intervention orders (but breaches of such orders may appear);
• Children’s Court care/protection orders;
• mental health involuntary orders or community treatment orders;
• details of detention under migration laws;
• an order that you pay a civil debt;
• cases prosecuted by agencies or individuals other than police (e.g. local councils);
• details of occupational or professional disciplinary action; and
• overseas court cases.

Remember that different information will be disclosed depending on whether you apply for your records for your own personal information, or for the purposes of seeking employment, voluntary work or occupation-related licensing and registration.

It is possible to avoid a criminal record by participating in the Magistrates’ Court diversion program. Successful completion of a diversion program means that a person is not found guilty of the offence (s 59 Criminal Procedure Act 2009 (Vic)). The record of the offence will not be included in a police check for employers unless exemptions apply.

If you believe that criminal history information on your Victoria Police National Police Certificate is incorrect, Victoria Police has a dispute resolution process that you can use. Write to the Manager of Public Enquiry Services at Victoria Police (GPO Box 919, Melbourne 3001) or via email (policecheckvic@police.vic.gov.au). You may be required to provide comparison fingerprints in some circumstances to enable resolution of the dispute.

Driver history records issued by VicRoads are different to police checks. Driver history records will show driving convictions which are spent. Your driver history report may be given to employers, prospective employers and vehicle insurers (with your consent) or you can ask for VicRoads to give it to you.

Police checks are conducted nationally. If a record is obtained by Victoria Police from another Australian state or territory police force, the relevant spent conviction scheme is applied (as well as Victorian spent convictions laws) before the disclosable convictions are released.

In Australia, under various Commonwealth, state and territory legislation, a person has the right – in particular circumstances or for a particular purpose – to not disclose certain convictions (e.g. findings of guilt that occurred a certain number of years ago). These convictions are widely referred to as ‘spent’ or ‘rehabilitated’ convictions.

These convictions will not appear on most criminal records checks (i.e. police checks). However, in some circumstances, the police and courts will still be able to share your spent conviction with other government departments or agencies.

Spent conviction laws cover federal offences and offences committed in every state and territory. You should contact the police of the state or territory where you may have committed an offence to obtain further information about their release policies and legislation.

Spent conviction laws in Australian jurisdictions may allow you to withhold information about any spent convictions except if applying for certain jobs. Different rules apply in different Australian states and territories, but the exceptions usually involve applications for jobs in justice and law enforcement, or jobs that involve working with children, the elderly or vulnerable people.

If spent convictions legislation prohibits an administrative decision-maker (e.g. a regulator or licensing authority) from taking a spent conviction into account when making a decision, then the Administrative Appeals Tribunal may not take that spent conviction into account when undertaking a merits review of the decision (see Frugtniet v Australian Security & Investments Commission [2019] HCA 16).

Victoria’s Spent Convictions Scheme

Victoria now has a Spent Convictions Scheme. The scheme means that the disclosure of criminal records is controlled by the Spent Convictions Act 2021 (Vic) so that:

• spent convictions do not appear on your police check (unless an exemption applies);
• no one can ask you to disclose information about your spent conviction (except where another law permits this);
• you do not have to disclose that you have a criminal record if you only have spent convictions (except in certain circumstances);
• it is unlawful to discriminate against you because of your spent conviction;
• people who unlawfully collect or disclose spent convictions face penalties.

How do convictions become spent?

Under the Spent Convictions Act 2021 (Vic), there are three ways a conviction can be spent:

1 Immediately on the day you were found guilty or after you complete any imposed conditions; or

2 If you have not been convicted of another offence for 10 years (adults) or five years (young people); or

3 On application to the Magistrates’ Court.

The category you fall into depends on:

• how old were you at the time of the offence or sentencing; and
• what offence you were convicted for; and
• what sentence you received.

Convictions that are spent immediately

Convictions for offending committed before a person turned 15 are automatically spent. Sentences where no conviction is recorded are spent immediately. An infringement conviction (fine) is spent immediately. A qualified finding of guilt (such as a finding of not guilty by reason of mental impairment) is spent immediately.

Many convictions are spent immediately from the date any conditions on the penalty are completed. For example, if your sentence was an adjourned undertaking with a condition to be of good behaviour for a period of 12 months, your conviction would be spent after 12 months being of good behaviour.

Flowchart for children and young people Can my conviction be spent? When you apply for work, education or volunteering you are often asked for a police record check. In some circumstances your old and minor convictions can be ‘spent’ and so will not show up on your police record check (unless an exemption applies). This flowchart applies if you were under 21 when you were sentenced for your offence. If you were 21 or older, please see the flowchart for adults. Key for flowchart More information Find more information about what the Spent Convictions Act 2021 means for you: www.justice.vic.gov.au/spent-convictions-act-2021

Flowchart for adults Can my conviction be spent? When you apply for work, education or volunteering you are often asked for a police record check. In some circumstances your old and minor convictions can be ‘spent’ and so will not show up on your police record check (unless an exemption applies). This flowchart applies if you were aged 21 or older when you were sentenced for your offence. If you were under 21, please see the flowchart for children and young people. Key for flowchart More information Find more information about what the Spent Convictions Act 2021 means for you: www.justice.vic.gov.au/spent-convictions-act-2021

Convictions that are spent automatically after the expiry of the crime-free ‘conviction period’

Many convictions are spent automatically after a set ‘conviction period’ without further offending is completed. The ‘conviction period’ is five years for a conviction of a young offender/child under 21 at the time of the offence or 10 years for any other person. If the person reoffends during these periods, the conviction period restarts unless the offending is very minor, such as offending that results in a fine of no more than 10 penalty units, a finding of guilt ‘without conviction’, no penalty other than an order for compensation or restitution, or no penalty is ordered at all after a finding of guilt.

Convictions that can be spent on application to a court

For most ‘serious convictions’ an application must be made to the Magistrates’ Court after the ‘conviction period’ of five years for a young offender/child under 21 at the time of the offence or 10 years for any other person. There are a few exceptions to this, such as where a conviction was not recorded or where a conviction can never be spent. ‘Serious convictions’ are convictions for:

• a sexual offence;
• a serious violence offence (such as murder, manslaughter, some serious injury offences and kidnapping); or
• any other type of offence if 30 months’ imprisonment (or detention in a youth justice facility) or longer was imposed.

Applying for a spent conviction order is free, but you need to obtain a copy of your police check, complete an application form (including any supporting material you want the court to consider about your rehabilitation) and file your application with the court and serve your application on the Chief Commissioner of Police and the Attorney- General. You may need to attend a hearing. More information about how to apply for a spent conviction order can be found at: www.mcv.vic.gov. au/criminal-matters/spent-convictions-scheme/ applying-spent-conviction-order.

It is unlawful for you to be discriminated against because of your spent conviction. However, some types of spent convictions can still make you ineligible for certain jobs or volunteer roles.

Victoria’s spent conviction laws are complex. The above information is a very simplified explanation. For more information, refer to Fitzroy Legal Service’s A Guide to Understanding Victoria’s Spent Conviction Scheme, available at www.fls.org.au/app/ uploads/2021/06/Copy-of-Spent-Convictions- CLE-guide-FINAL.pdf and visit the Department of Justice and Community Safety website (www.justice. vic.gov.au/spent-convictions). The two flowcharts on the previous two pages, one for children and young people and one for adults, will enable people to understand whether their conviction is spent.

Will having a criminal record hurt my job prospects?

An employer may legally ask you during the job application process whether you have any previous criminal history; they can also request that you consent to a criminal record check. However, an employer cannot ask you about your spent convictions. They can only ask about convictions that are not spent (unless they have an exemption). Although it may affect your employment prospects, it is ultimately your choice whether or not you wish to disclose your record and/ or consent to a criminal record check.

If you choose to disclose your criminal history to an employment agency, be aware that they may owe a duty of care to prospective employers not to refer you for employment should your prior criminal history be relevant to the proposed employment. An employment agency may also owe a duty of care to only refer you to a prospective employer after informing them, with your consent, of your criminal history (see Monie v Commonwealth, unreported, NSW Court of Appeal, Mason P, Beazley & Campbell JJA, 3 September 2007).

There is no general statutory obligation to voluntarily disclose a criminal history. However, there are some specific exceptions and eligibility requirements imposed by statute that apply to professions and certain occupations for professional registration and licensing purposes. Generally, bodies involved in accreditation and licencing are able to access your criminal history, often including spent convictions. However, it is important to note that a spent conviction can only be disclosed to the agency or department that is deciding whether to register or accredit you. This exemption does not extend to your employer, so an employer will not see any spent convictions on the police check it receives for employment purposes.

Some of the professions and occupations where exemptions apply that enable access to spent convictions for registration and licencing purposes include:

• teachers (s 2.6.7(4)(a), 2.6.22A Education and Training Reform Act 2006 (Vic));
• health practitioners (ss 77, 135 Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) – these provisions specifically exclude the operation of spent convictions laws that would otherwise allow non-disclosure of a criminal history);*
• lawyers (s 17 Legal Profession Uniform Law Application Act 2014 (Vic));
• security guards and crowd controllers (s 25 Private Security Act 2004 (Vic));
• second-hand dealers and pawnbrokers (s 6(2)(a) Second-Hand Dealers and Pawnbrokers Act 1989 (Vic));
• introduction agents (s 92 Australian Consumer Law and Fair Trading Act 2012 (Vic));
• building practitioners and plumbers (ss 169A, 221VA Building Act 1993 (Vic));
• conveyancers (s 5 Conveyancers Act 2006 (Vic));
• prison-related services (s 9A Corrections Act 1986 (Vic));
• poppy cultivators or processors (s 69NB Drugs, Poisons and Controlled Substances Act 1981 (Vic));
• real estate agents (s 14 Estate Agents Act 1980 (Vic));
• fundraisers (s 18E Fundraising Act 1998 (Vic));
• car traders (s 13 Motor Car Traders Act 1986 (Vic));
• staff members of supported residential services (s 66 Supported Residential Services (Private Proprietors) Act 2010 (Vic));
• police officers (s 103 Victoria Police Act 2013 (Vic));
• members of the State Emergency Service (s 37 Victoria State Emergency Service Act 2005 (Vic));
• employment in child-related work (Working with Children Act 2005 (Vic));
• out-of-home carers, including kinship carers and foster carers (s 77 Children, Youth and Families Act 2005 (Vic));
• drivers accredited with Commercial Passenger Vehicles Victoria (s 73 Commercial Passenger Vehicle Industry Act 2017 (Vic));**
• aged-care workers and volunteers in aged-care facilities (s 10A(1) Aged Care Act 1997 (Cth)). NOTES

A failure to disclose your criminal history may cause problems later if contradictory information appears on your police check. It may also justify your employer terminating your employment at some time in the future (despite the fact that a charge may not have been disclosed on your police record because of a lapse of time). Note that once you are employed, an employer does not have a general right to enquire about your criminal history status, unless your employment is subject to regulations or is a contract requiring ongoing disclosure.

Discrimination because of a spent conviction

Generally, it is unlikely that a criminal conviction for a minor offence will automatically be a bar to employment. It should be assessed by the employer and considered according to the individual circumstances of the case and the requirements of the job. Unfortunately, some employers do discriminate against people with criminal records and don’t consider them for employment, no matter how minor or old the record is, and regardless of its relevance to the job.

However, it is unlawful to discriminate against a person because of their spent conviction. An employer must not treat an employee or an applicant for a job unfairly or unfavourably because of their spent conviction unless they have an exemption. Employers and other agencies also have a duty under the Equal Opportunity Act 2010 (Vic) to take proactive steps to prevent unlawful discrimination from occurring.

If you have been treated unfairly because of a spent conviction in areas of public life, you may have experienced unlawful discrimination. This could include:

• being refused accommodation;
• not being accepted for a job (and the employer does not have an exemption);
• denied a service (eg banking and insurance);
• treated unfairly at work or at school; or
• prevented from joining a club.

If you have been discriminated against because of a spent conviction, you can contact the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) and/or seek legal advice. The VEOHRC has developed a spent conviction discrimination guideline which provides further information: www. h u m a n r i g h t s. v i c. g o v. a u / f o r- i n d i v i d u a l s / s p e n t – conviction/. If you wish to make a complaint to the VEOHRC, you should do so within 12 months of the unlawful discrimination occurring.

Some protection is also available under the Australian Human Rights Commission Act 1986 (Cth) (‘AHRC Act’) for people who have been treated unfairly on the basis of having a criminal record. If you think you have been treated unfairly, you may be able to obtain redress and you should seek legal advice.

The AHRC Act prohibits discrimination on the basis of ‘irrelevant criminal record’ (AHRC Act s3(1), Australian Human Rights Commission Regulations 2019 (Cth), r 6(a)(iii)). The scope of the prohibition is somewhat broader under the AHRC Act, as ‘irrelevant criminal record’ can include convictions which have not been spent, whereas the Equal Opportunity Act 2010 (Vic) only applies to ‘spent conviction’ related discrimination (s 6(pb)). The Australian Human Rights Commission (AHRC) can investigate discrimination and, where appropriate, try to resolve a discrimination complaint by conciliation. The AHRC can only provide recommendations and does not have the authority to implement or enforce the recommendations, although their recommendations are reported to the federal parliament and are published. Some examples of AHRC reports of inquiries into complaints of discrimination in employment on the basis of criminal record include:

• HREOC Report No. 20, Ms Renai Christensen v Adelaide Casino Ltd;
• HREOC Report No. 19, Mr Mark Hall v NSW Thoroughbred Racing Board.

There is no discrimination where a person’s criminal record means that they are unable to perform the inherent requirements of a particular job. The AHRC has published Discrimination in Employment on the Basis of Criminal Record and other useful information, which can be found at www. humanrights.gov.au. The guidelines outline a process to help determine whether a criminal record may interfere with the inherent requirements of a job.

The AHRC has dealt with discrimination on the basis of criminal record in several cases, including:

• AV v Dial-An-Angel Pty Ltd [2015] AusHRC 97;
• AN v ANZ Banking Group Ltd [2015] AusHRC 93;
• PJ v AMP Financial Planning Pty Ltd [2014] AusHRC 89;
• BE v Suncorp Group Ltd [2018] AusHRC 121;
• Ms Jessica Smith v Redflex Traffic Systems Pty Ltd [2018] AusHRC 125.

Criminal record checks for jobs advertised as ‘public sector positions’ are covered by specific recruitment guidelines. The guidelines usually say that checks should only be completed for the people who are to be offered jobs. The guidelines suggest that people be given an opportunity to discuss any criminal history, usually with the human resources manager, before a final decision about employment is made.

The public sector agency should consider a number of circumstances, including the age of the prior finding of guilt, your age at the time, the number of convictions, the sentence imposed by the court, evidence of rehabilitation including subsequent work experience, and any extenuating circumstances. The main thing for your potential employer to consider is whether the criminal record is relevant to your employment.

If you are unsure about whether you have to disclose a previous criminal record for a job, you should seek legal advice from a lawyer who practices in employment law (see Chapter 2.4: Legal services that can help).