Information about Victoria's Spent Convictions Act 2021

Finding a good job in Victoria, Australia, may be a tedious process - and having a criminal record only makes the process more challenging. Why? Because employers are generally wary of hiring an applicant with a criminal record, especially when they can find one with a clean slate.

Thankfully, the Spent Convictions Act 2021 (Vic) passed the Victorian Parliament on 18 March 2021. This new scheme redefines how a person's criminal history is revealed. This rule aims to reduce incidents of discrimination against those with criminal records. You would agree that most past offenders deserve a fresh start, especially those proven to be upright.

This post will explore all the items covered by the Spent Convictions Act 2021 (Vic). After that, we will examine some specific information for the community and employers. Let's get right into it.

What is Victoria's Spent Convictions Act 2021?

The Spent Convictions Act 2021 (Vic) provides a framework for disclosing a person's criminal record. Hence, an applicant's criminal record may omit some convictions, depending on the requesting body. Such omitted convictions are termed 'spent'.

Consequently:

1. Spent convictions will be omitted on police record checks (unless certain exemptions apply)
2. In most instances, a person cannot be asked to disclose information regarding spent convictions.
3. A person is not legally obligated to disclose information regarding spent convictions, except in cases where the law explicitly states so.

Convictions covered by the Spent Convictions Act 2021

Although most of the Spent Convictions Act in Victoria started on 1 December 2021, it applied retroactively to past offences. It will also apply to current and future convictions. Overseas convictions with equivalent convictions in Victoria may also be spent.

With different kinds of spent convictions, this new Act isn't just an easy way out for offenders to get away with whatever past offences. That's why factors like the type of offence, age of the offender at the time of the offence, the court outcome and lots more go into determining if a conviction can be spent.

Specific Information for the Community

If you're a past offender, this section is for you! The Spent Convictions Act 2021 (Vic) means you no longer have to disclose spent convictions - and such convictions will no longer appear on your police record check. However, there are some exceptions. For instance, specific fields like health and working with children require a full criminal record (including spent convictions).

Ways a Conviction can be Spent.

There are three different ways a conviction can be spent. They include:

1. Immediately

As noted earlier, the Spent Convictions Act will retroactively impact qualified historical convictions. Examples of such automatically spent convictions include offences committed under the age of 15 or instances where the Court made its order without conviction (this applies to even severe violence and sex-related crimes).

Hence, starting from 1 December 2021, these convictions have automatically been considered spent and will no longer reflect on your police record check, except in some instances.

2. After some time elapses

The Spent Convictions Act 2021 (Vic) defines a crime-free period for certain offences where the offence will be spent automatically. This crime-free period is defined as:

• ✔ 10 years for adult offenders
• ✔ 5 years for minor offenders

Note that this mechanism only applies to certain types of convictions that meet the following conditions:

• ✔ The conviction is not related to severe violence or sex-related offence.
• ✔ The imprisonment's term or detention duration in a youth facility for the conviction was 30 months or less.

3. Only after approval by a Magistrates' Court

For serious convictions (like those related to serious violence or sexual offence or those with a punishment term longer than 30 months), you may apply to the Magistrates Court after the crime-free period if you want the offence to be spent. However, note that such applications are assessed on a case-by-case basis. Hence, it is up to the Court to determine if your case is tenable.

You might be thinking, "When can a serious conviction be spent?". In most instances, they cannot. However, serious convictions may be automatically spent under the following conditions:

• ✔ You committed the crime when you were younger than 15.
• ✔ You received a court sentence without a conviction finding
• ✔ You were found guilty after a special court hearing even after being declapd unfit for trial.
• ✔ The only penalty was a Children's Court fine.

If you believe you have a solid case to have a severe conviction classified as spent, note that the application process will commence on 1 July 2022.

However, it's also crucial to note that certain serious convictions can never be spent. This is particularly true for offences committed when you were 21 or over at the time of sentencing and:

• ✔ The conviction is related to serious violence or sexual offence.
• ✔ Other types of convictions where you received a prison sentence of more than five years.

Exemptions for disclosing spent convictions

While a spent conviction will be omitted from your police record check, for the most part, it will still show up in certain instances.

For instance, police, courts, and some agencies are exempted from the Spent Convictions Act 2021 (Vic), meaning they can access spent convictions for specific purposes. The police and Court have broad powers to access your complete criminal history because of their obligation to ensure community safety. Spent driving-related convictions will show up in driver history reports issued by VicRoads.

• ✔ Seeking employment with Victoria Police, Corrections, or the Court.
• ✔ Applying for a firearm licence.
• ✔ Seeking accreditation or registration in specific fields like health work, teaching, and law.
• ✔ Screening to work with children.

However, note that revealed spent convictions can only be used for the specified purposes in the exemption. Spent convictions may be released:

• ✔ For further investigation by law enforcement
• ✔ When ordered by the Court as part of a legal case
• ✔ If requested by the Chief Commissioner of Police in another territory
• ✔ If you give your formal consent in writing
• ✔ To a lawyer for appropriate legal advice.

Other things to know about the Spent Convictions Act 2021

In most instances, employers will not have access to your spent convictions. However, this may not apply when the job involves working with vulnerable groups like children and the elderly.

Moreover, spent convictions will be revealed when seeking employment in agencies like the court services, Commissioner for Corrections, Victoria Police, and the Office of the Victorian Information Commissioner.

As noted earlier, driver history reports issued by VicRoads also reveal spent driving convictions. Accreditation and registration to certain professional bodies also require a complete criminal history check.

Note that landlords, real estate agencies, and other housing providers will never have access to your spent conditions. It is illegal for them to ask about spent convictions.

Most licence application processes require a police check. Unless the licensing body has an exemption, the body won't receive information on your spent convictions. Some exemption examples in Victoria include:

1. Firearms licences issued by Victoria Police
2. Gambling and casino licences issued by VCGLR.
3. Professional Boxing and Combat Sports Board
4. Private Security licences issued by Victoria Police
5. Liquor licensing and regulation of liquor licensees.

Dealing with discrimination based on spent convictions

First off, note that it is illegal for employers to get information on your spent convictions without your informed consent. If they do, they will be subject to a penalty.

Furthermore, it is illegal for employers to discriminate against you based on your spent convictions - especially if such convictions do not have a bearing on the role in question.

Specific Information for Employers

Over the past two decades, employers have increasingly adopted performing police checks on job applicants to minimise hiring risks. Unfortunately, applicants with criminal records were discriminated against, even when past crimes had no real bearing on effectively performing the role in question. Victoria's Spent Convictions Act 2021 provides a way to prevent such biases. The Spent Convictions Act controls how an applicant's criminal history is disclosed.

• ✔ Spent convictions will not appear in police record checks unless in certain instances.
• ✔ Serious offences committed under the age of 15 can be spent.
• ✔ The crime-free period before a conviction can be considered spent is 10 years for adults and 5 years for minors.
• ✔ If a person commits another offence during this crime-free period, the counting of the crime-free period will restart.
• ✔ Serious violence of sexual-related offences committed over 21 can never be spent.
• ✔ Convictions with prison terms longer than five years cannot be spent.

All information stated in previous sections is also relevant to employers. Hence, this section mainly contains new information.

Spent Convictions and police record checks for employment

In general, police record checks will not show spent convictions unless the employer has a specified legislative exemption. Examples of employers/positions with this exemption include police, courts, law enforcement agencies, children-related, and driving-related roles.

Anyone who works or volunteers for child-related roles in Australia requires the Working with Children Check. Since children are considered a vulnerable group, this check was mandated to ensure that children are protected from former child molesters or past offenders with serious violence or sex-related offences, as they are considered unfit to work with children.

Given the crucial importance of protecting children, spent convictions do not affect the Working with Children Check procedure. Hence, your police record submitted to the Department of Justice and Community Safety as part of the WWCC will contain spent convictions.

Minor driving infringements won't show up in a police record check. However, severe driving offences that result in a court conviction will. When the driving-related condition is spent, it will no longer reflect on your police record check for most employment.

However, accreditation agencies (e.g. local government) will have access to spent driving convictions for positions that require accredited drivers.

As noted earlier, driving history reports issued by VicRoads will show spent driving convictions. But these reports are different from police checks.

Things employers should avoid

1. Do not ask an applicant about spent convictions.

The Spent Convictions Act 2021 makes it illegal for employers to ask an applicant about spent convictions. Hence, make sure that your forms are updated accordingly.

However, employers with exemptions may have access to spent convictions of applicants. But even in such cases, formal written consent from the applicant is required. After receiving information on such spent convictions, the employer is responsible for relaying the information they received to the applicant and allowing the applicant to respond.

2. Avoid discrimination based on spent convictions.

The Spent Convictions Act 2021 (Vic) amends the Equal Opportunity Act to prohibit discrimination against an applicant because of a spent conviction. This Act makes it the employer's onus to prevent discrimination proactively.

Hence employers should develop suitable action plans, update policies and procedures, and provide updated staff training to reduce the likelihood of discrimination.

Discriminating against an applicant because of a spent action may expose you to legal action from the Victorian Equal Opportunity and Human Rights Commission.

3. Do not collect or disclose information on an applicant's spent convictions unlawfully.

Unlawfully collecting or disclosing spent conviction information is a serious offence with severe consequences.

✔ Penalties for unlawful use or disclosure

Unlawful use or disclosure of spent convictions occurs when the employer does not have the legal authority to access the spent convictions of an applicant or obtain such information without the written consent of the applicant.

This offence carries a high consequence of 40 penalty units.

✔ Penalties for fraudulent or dishonest acquiring of a spent conviction

Securing the spent conviction of an applicant through deceitful or devious means draws a punishment of 20 penalty units.

Wrap Up

The Spent Convictions Act 2021 (Vic) controls the revealing of a person's criminal history. This new Act is part of an effort to ensure those with a criminal past have a fair chance to rebuild their lives. Employers are legally obligated to follow the procedures stated by this new Act to avoid legal troubles.

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