Employment

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Will a criminal record hurt my job prospects?

Some employers must ask for a police check. For example, if the job involves working with children.

Other employers can choose whether to ask for a police check.

As discussed in ‘police & criminal record checks‘, spent convictions will show up on some police checks.

Some people put details of their activism proudly on their resumes as a demonstration of their conviction and concern.

This can, for example, allow them to explain and clarify a conviction like ‘trespass’ before it appears on a police records check.

Others do not wish to disclose details of a criminal record for fear that it will limit their opportunities in the future.

Generally, it is unlikely that a criminal conviction for a minor offence will automatically be a bar to employment.

It will usually be assessed by the employer and considered according to the individual circumstances of the case.

Unfortunately there are, however, cases of discrimination based on a person’s criminal record.

There are protections for being treated unfairly because of a spent conviction. Many organisations are also calling for this protection to include ‘irrelevant convictions’ or ‘irrelevant criminal records’.

If you have a criminal record, be prepared for an employer to ask you about your criminal history. Before the interview:

  • find out if they are lawfully allowed to see spent convictions;
  • if any of your convictions will automatically bar you from the job; and
  • how you will respond if they ask.

Note that once you are employed an employer does not have a general right to enquire as to your criminal status, unless your employment is subject to regulations or a contract requiring ongoing disclosure.

Commonwealth offences

Activists can be charged with commonwealth (federal) offences.

There is a federal spent convictions scheme.

Part VIIC of the Crimes Act1914 (Cth) provides that where a conviction for an offence has been pardoned, quashed or spent, the person is:

  • Taken to have never been convicted of the offence; and
  • not required to disclose the fact that they were charged with or convicted of the offence

This right of non-disclosure of federal spent convictions applies to the disclosure of information “to any person, for any purpose” and, therefore, will apply to requests for information made by an employer to an applicant during the recruitment process.

A person’s federal conviction becomes “spent” if they have been granted a pardon, or they were not sentenced to imprisonment for more than 30 months and the relevant “waiting period” has expired. The waiting period is 5 years from the date of conviction if the person was treated as a juvenile in relation to the offence, or 10 years in all other cases.

If a person is convicted summarily of another offence which was committed during a waiting period, the court may order that the first conviction not become spent until the waiting period for the later conviction has ended. Where the later conviction is by indictment (a serious criminal matter), the court has no discretion in relation to the treatment of the earlier conviction – it will not become spent until the waiting period for the later conviction has expired.

The right of non-disclosure does not apply in certain circumstances. These exclusions are listed in Division 6 of Part VIIC and Regulation 8(1) of the Crimes Regulations1990, and include, for example:

  • Prospective employees or members or law enforcement agencies and intelligence security agencies
  • Bodies involved in the care, instruction or supervision of minors, for the purpose of finding out whether a prospective employee has been convicted of a “designated offence” (namely a sexual offence or any other offence against a person who was under 18 at the time the offence was committed)
  • Convictions for designated offences for the purpose of assessing the suitability of a person for certain positions with the Australian Defence Force
  • Convictions for offences involving violence for prison administration positions.

Victorian state law

It is not clear in Victoria whether a person has to disclose the fact that they were charged with or convicted of a State offence if that offence doesn’t show up on a Victoria Police check.

As a general rule you, you don’t have to disclose more than what comes in your police check.

But be mindful – there are some situations where you are expected to be transparent and honest.

For example: when applying to be admitted as a lawyer. If a conviction (including a spent conviction) does not show up on your police check, you are still expected to disclose it. If it comes to light later on that you did not disclose a conviction, you may be struck off.

Public service

Criminal record checks for jobs advertised as “public sector positions” are covered by specific recruitment guidelines.

The guidelines say that checks should only be performed on the people who are to be offered jobs.

The guidelines suggest that people be given an opportunity to discuss any conviction, usually with the human resources manager of the department, before a final decision about employment is made.

The department should consider a number of circumstances, including:

  • the age of the conviction,
  • your age at the time,
  • number of convictions,
  • the sentence imposed by the cour, and
  • any extenuating circumstances.

The main thing for your potential employer to consider is whether the criminal record is relevant to your employment.

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