Checking your criminal record
To check your criminal record in Victoria, you need to fill out a form (called ‘consent to check and release national police record’) and pay a fee (the fee is $49.60, reduced to $18.60 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 offence, 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 non-custodial sentence or a custodial 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 appeal or rehearing, the 10- or five-year period is calculated from the original court 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 will 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 charge 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 jurisdiction 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 bond 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 service provider’s licences under the Sex Work Act 1994 (Vic);
- operator accreditation under the Bus Safety Act 2009 (Vic);
- applications for private security 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 pursuant to the Honorary Justices Act 2014 (Vic);
- admission to the legal profession (Legal Profession Uniform Law Application Act 2014 (Vic));
- applications for marriage celebrant registration;
- employment with Court Services Victoria;
- immigration and 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 voluntary 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 statutory 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 discretion.
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 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 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 legislation/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.
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 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.
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 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)).
(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 contract requiring ongoing disclosure.
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.
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 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. 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, 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).