Checking your criminal record
To check your criminal record in Victoria, you need to fill out a form (called ‘To agree to something being done, to approve an action or arrangement. See also informed consent. to check and A document signed by parties ending a court action. The party who began the action agrees to drop it, often in exchange for a payment by the other party. Also called terms of settlement. national police record’) and pay a fee (the fee is $48.90, reduced to $18.40 for volunteers). You can get details from the police by telephoning 1300 881 596. An online application form can be downloaded from the Victoria Police website at www.police.vic.gov.au (click on ‘our services’, then ‘national police record checks and fingerprinting’). There are also private companies that are accredited by the Australian Criminal Intelligence Commission that conduct checks of criminal records.
In Victoria, the release of your criminal record is governed by Victoria Police policy. Without the subject’s written consent, Victoria Police is not authorised to release information about a person’s police record to any organisation outside the sphere of law enforcement and the administration of justice.
What will my record show?
Victoria Police releases criminal history information on the basis of findings of guilt, regardless of whether or not a conviction is recorded. Police records are released in accordance with these guidelines (Victoria Police Information Release Policy):
- If the individual was an adult (17 or 18 years* or over) when last found guilty of an A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious)., and 10 years have elapsed, no details of previous offences are released.
- If the individual was a child (under 17 or 18 years*) when last found guilty of an offence, and five years have elapsed, no details of previous offences are released.
- If the last finding of guilt resulted in a A sentence for a criminal offence that does not involve imprisonment. The offender would normally be sentenced to a form of rehabilitation. See also ICO (intensive correction order). or a A prison sentence. of 30 months or less, the 10- or five-year period starts from the day the individual was found guilty.
- If the last finding of guilt is an The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision. or rehearing, the 10- or five-year period is calculated from the original An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. date.
- If the last recorded or most recently committed offence qualifies to be released, then all findings of guilt are released, including juvenile offences (i.e. the entire criminal record).
- If the record contains an offence that resulted in a custodial sentence of longer than 30 months, the offence A document that sets out what a person wants to happen to their money and other property after they die. always be released.
- If 10 years have elapsed since the last finding of guilt, only the offence(s) that resulted in a custodial sentence of longer than 30 months are released.
- Relevant offences where the result was acquittal or not guilty by reason of insanity or mental impairment may be released.
- If the individual is currently under investigation or has been charged with an offence and is awaiting the final court outcome, the pending matters or charges are released. It is noted on the certificate that the matter or (1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case. cannot be regarded as a finding of guilt as either the matter is currently under investigation or the charge has not yet been determined by a court.
* The age The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area. of the Children’s Court’s Criminal Division was increased on 1 July 2005. This change does not operate retrospectively, so offences committed before this date are released by police in accordance with the previous age jurisdiction of 17 years.
Findings of guilt without conviction, good behaviour bonds and outstanding charges
Findings of guilt without conviction and findings resulting in an adjourned undertaking or a good behaviour (1) An undertaking by someone to do or not do something, especially a good behaviour bond, which can be part of a sentence given by a court. (2) A tenant’s payment of money to a landlord at the start of a tenancy. The bond is held in case there is any damage to the property or the tenant fails to pay rent. are considered to be findings of guilt under the guidelines, and are released. If the check shows that the individual has been charged with offences – or is being investigated for outstanding matters not yet heard at court – Victoria Police will release details of the charges or pending matters and state that they are yet to be determined by a court. It is noted that the matter/charge cannot be regarded to be a finding of guilt.
Victoria Police only releases traffic offences when the court outcome was a sentence of imprisonment or detention (for young people). ‘Traffic offences’ are not defined in the Victoria Police Information Release Policy.
In some circumstances, a record that is over 10 years old may be released. These circumstances include if the record check is for the purposes of:
- registering with a child-screening unit and/or Victorian Institute of Teaching;
- the registration and accreditation of health professionals;
- employment in prisons or state police forces;
- applications for casino or gaming licences;
- applications for sex work Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence. provider’s licences under the Sex Work A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1994 (Vic);
- operator accreditation under the Bus Safety Act 2009 (Vic);
- applications for private Money or property promised to be handed over as a guarantee for repayment of a loan, or as a guarantee that a defendant will meet their bail conditions. licences under the Private Security Act 2004 (Vic);
- driver accreditation with Commercial Passenger Vehicles Victoria (Commercial Passenger Vehicle Industry Act 2017 (Vic));
- applications for firearms licences under the Firearms Act 1996 (Vic);
- employment with the Independent Broad-based Anti-corruption Commission (IBAC);
- applications for licences to cultivate poppies under the Drugs, Poisons and Controlled Substances Act 1981 (Vic);
- appointments of honorary justices By authority of, or in accordance with, or as directed by, some court order or legislation. the Honorary Justices Act 2014 (Vic);
- admission to the legal profession (Legal Profession Uniform Law Application Act 2014 (Vic));
- applications for A voluntary, formal and legally binding agreement between two people to have a permanent relationship together. There must be a statement in front of official witnesses who register the marriage with the authorities. See also cohabitation; de facto; divorce; domestic relationship. celebrant registration;
- employment with Court Services Victoria;
- immigration and A permit that allows a person who is not a citizen to stay in a country on certain conditions, for the length of time stated in the visa. applications related to the Migration Act 1958 (Cth);
- employment with the Office of the Information Commissioner Victoria, pursuant to the Privacy and Data Protection Act 2014 (Vic);
- disability worker registration pursuant to the Disability Service Safeguards Act 2018 (Vic);
- employment or Done by your own free will. See also community treatment order (CTO). work with children or vulnerable people (only if the record includes a serious offence of violence or a sex offence).
A record that is over 10 years old may also be released if the record contains ‘relevant offences’ where the result was ‘acquitted by reason of insanity or mental impairment’ or ‘not guilty by reason of insanity or mental impairment’.
The police may release criminal record information:
in circumstances where the release of information is considered to be in the interests of security, crime prevention or the administration of justice and/or otherwise necessary for the proper, legal or Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. assessment of an applicant (Victoria Police Information Release Policy, revised 8 July 2020).
It is not known how Victoria Police interpret this exception. This is a broad Power to choose whether to do something or not. For example, a judge may have discretion to allow a party extra time to complete a document if it would be unfair to enforce the legal time limit..
What will my record not show?
Your police record usually does not include:
- not guilty outcomes (except for ‘relevant offences’ where the result was ‘acquitted by reason of insanity or mental impairment’ or ‘not guilty by reason of insanity or mental impairment’);
- 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 will 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 Money that is owed by one person or business to another.;
- 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 a different release policy is applied by Victoria Police 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.
Disputing a police record
If you believe that criminal history information on your Victoria Police record 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); include a copy of your driver licence or passport.
It is possible to avoid a criminal record by participating in the Magistrates’ Court’s 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 is not available to the public, including potential employers.
Offences outside Victoria
Victoria Police conducts a nation-wide check of criminal records. If a record is obtained by Victoria Police from another police force, the relevant Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute./policy affecting the records of that police force is applied (as well as the Victoria Police’s own Information Release Policy) before it is released.
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). Such convictions (widely referred to as ‘spent’ or ‘rehabilitated’ convictions) are not released unless the records check is for the applicant’s personal information only and providing that this is in accordance with relevant legislation (and/or release policies).
A criminal conviction which is removed from a person’s criminal record if they do not reoffend during a certain period. laws cover federal offences and offences committed in every state and territory except Victoria.* 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 other 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 A body set up to hear and decide disputes, usually with less formality and less strict rules of evidence than in a court proceeding. may not take that spent conviction into account when undertaking a merits review of the decision (see Frugtniet v Australian Security & Investments Commission  HCA 16).
* In February 2020, the Victorian Attorney-General announced that Victoria would establish a legislated spent convictions scheme. At the time of writing (1 July 2020), spent convictions legislation had not yet been introduced.
Will having a criminal record hurt my job prospects?
The law about the rights of employers to enquire into the criminal histories of prospective employees is uncertain. 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 an official criminal record check. However, it is your decision 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 An obligation to take reasonable care to avoid harming other people or their property. Breach of a duty of care that causes damage or loss to another may give rise to an action in tort. 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 A law made by parliament, either state or Commonwealth. Also called an Act, and Act of parliament or legislation. that apply to professions and certain occupations for professional registration and licensing purposes.
These professions and occupations 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 Under the Australian Consumer Law, a person who buys goods or services for less than $40 000 or for personal or home use. 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 All the property a person has, including real property and personal property. It is often used to describe property belonging to someone who has died, or the property of a bankrupt. 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)).
(See also ‘Working with children checks’, below).
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 An agreement that the law will enforce. requiring ongoing Providing information to another person or institution as required by a contract or other legal process..
Generally, it is unlikely that a criminal conviction for a In Victoria, a child or young person under 18. See also infant. 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.
There is only limited protection 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. However, 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 a criminal record. The Australian Human Rights Commission (AHRC) can investigate discrimination and, where appropriate, try to resolve a discrimination complaint by A form of alternative dispute resolution. The parties negotiate with the help of an independent person called a conciliator. The aim is to sort out the dispute by mutual agreement, rather than having a decision made by a court or tribunal. See also arbitration; mediation; negotiation.. The AHRC can only provide recommendations and does not have the authority to implement or To make people obey a law or the terms of an agreement, using police powers or court orders. the recommendations, although their recommendations are reported to the federal parliament and are published. 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  AusHRC 97;
- AN v ANZ Banking Group Ltd  AusHRC 93;
- PJ v AMP Financial Planning Pty Ltd  AusHRC 89;
- BE v Suncorp Group Ltd  AusHRC 121;
- Ms Jessica Smith v Redflex Traffic Systems Pty Ltd  AusHRC 125.
* The Australian Health Practitioner Regulation Agency has established a registration standard to guide health practitioner registration boards when they are determining whether a health practitioner’s criminal history is relevant to the practice of their profession (see www.ahpra.gov.au).
** Applications for driver accreditation must be refused if an applicant has been found guilty or convicted of certain serious violent, sexual, motor vehicle or terrorism offences (category 1 offences). Commercial Passenger Vehicles Victoria can decide whether or not to refuse applications for driver accreditation from applicants who have committed category 2 or 3 offences (www.cpv.vic.gov.au).
Employment in the public service
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, Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. 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).