Activist Rights

Police & Criminal Record Checks

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Sometimes you might be asked to provide your criminal history information (a “police check”) for paid or volunteer work or for travelling overseas.

Victoria Police will only release criminal history information (police operations and court proceedings) if you consent (agree) to it.

What is released is controlled by the Spent Convictions Act.

There are 4 key things to remember:

  1. Some convictions and charges can be “spent”
  2. Spent convictions won’t show up on most police checks
  3. Spent convictions will show up on police checks for some types of jobs or licenses
  4. All other convictions will show up on police checks

A ‘spent conviction’ is a crime you were found guilty of at court that won’t show up on most criminal record checks (police checks).

Each conviction is looked at individually.

There are 3 ways that a conviction can become spent:

  1. Immediately
  2. After the “conviction free period”
  3. On application to the court

 

Immediately spent

A conviction is spent on the day you were convicted if:

  • You were found guilty but it was recorded ‘without conviction’;
  • You were found not guilty by reason of mental impairment, or you were found unfit to be tried;
  • You were under 15 at the time you committed an offence;
  • You were sentenced in the Children’s Court and the only penalty was a fine; or
  • The conviction was for an infringement.

These convictions are spent automatically, which means you don’t have to do anything.

If you had conditions, you must complete these before your conviction will be spent.

 

After the “conviction free period”

Some convictions will become spent after the “conviction free period” has ended.

The “conviction free period” is:

  • 5 years for children and young people
  • 10 years for adults or young people found guilty in an adult court.

Your conviction will become automatically spent after the conviction free period only if you were:

  • Sentenced to under 30 months of imprisonment or detention, and
  • Not convicted for a sexual offence, and
  • Not convicted for a serious violence offence (e.g.: murder, manslaughter, intentionally or recklessly causing serious injury, kidnapping, or
    arson causing death)

The conviction free period starts on the day you were convicted by the court.

These convictions are spent automatically, which means you don’t have to do anything.

 

On application to the court

You can only apply to the court if you were given a ‘serious conviction’, and the ‘conviction free period’ has finished AND one of the following applies to you:

  • you were a child or young offender when the conviction was given, or
  • you were an adult (or found guilty in an adult court) convicted of a sexual offence or serious violence offence and no term of imprisonment was imposed, or
  • you were an adult (or found guilty in an adult court) and you were sentenced to less than 5 years imprisonment.

There are two ways your spent convictions can still be disclosed:

  1. for some types of job or license applications; and
  2. for information sharing purposes.

For some purposes, pending charges, ongoing investigations, and findings of not guilty by reason of mental impairment will also show up.

For example: if you are applying for a Working With Children Check or a NDIS clearance, your full criminal history will be disclosed – including spent convictions and pending charges.

Police, courts, and tribunals can share information with each other about spent convictions to perform their duties, to enforce the law, or in the course of legal proceedings.

For the full list of who can see your spent convictions and when, go to pages 21-25 of the Spent Convictions Act.

All other convictions will show up on a police check, including convictions and findings of guilt from other States or federal offences.

Yes.

A ‘spent conviction’ is a protected attribute in Victoria (under the Equal Opportunity Act).

This means that, you shouldn’t be discriminated against because of a spent conviction. And, that you can take legal action if you are.

For example, unless your employer is listed on pages 21-25 of the Spent Convictions Act:

  • they can’t ask you to disclose a spent conviction;
  • they can’t fire, refuse to hire you, or you or treat you differently if they find out about a spent conviction through word of mouth or a google search.

If you’re employer is allowed to see your spent convictions and you still get the job, they can’t treat you worse than other people because of your spent conviction

They also aren’t allowed to tell other colleagues about your spent conviction, unless there is a lawful reason.

There are some times where you can be discriminated against because of a spent conviction. This will be when someone is legally allowed to see your spent convictions.

For example: if you were convicted for sexual assault and successfully applied to the court for the conviction the be spent – you might still be lawfully discriminated against when applying for a working with children’s check.

If you think there is an error in your police check (including if you think police have wrongfully included a spent conviction), you can dispute it.

If you made the application through Services Victoria, raise your dispute here.

If you made the application directly with Victoria Police, you can raise the dispute by emailing [email protected].

If the application was made through an Australian Criminal Intelligence Commission body, raise the dispute with that body.

If a spent conviction was unlawfully disclosed, speak to a lawyer about your options.

This page is just a brief over view.

For more information please read:

Spent Convictions Act

Understanding Victoria’s Spent Convictions Scheme by Fitzroy Legal Service

Spent Convictions Discrimination Guideline by VEOHRC

Criminal Records Spent Convictions and Employment Fact Sheet by JobWatch

Spent Convictions webpage by the Victorian Government

Spent Convictions Scheme webpage by the Magistrates’ Court Victoria

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