The Law Handbook 2024

Chapter 3.9: Understanding criminal records 247 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. Employment 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