If you are thinking about risking arrest or have recently been charged, you may be interested in how a possible charge or conviction could affect you in the future.
Having a criminal record may affect you in two key ways. First, a criminal record can be accessed by the Police in investigating future criminal activity and relied on in subsequent criminal proceedings against you. Second, it may appear on an official police record requested by you. It is the second of these circumstances that attract the most queries.
Police record checks in Victoria
In Victoria, the release of your police record is governed by Victoria Police policy. You can find this on the Victoria Police website at http://www.police.vic.gov.au [1]
Victoria Police does not release information about a person’s police record to any organisation outside the sphere of law enforcement and the administration of justice without the subject’s consent.
- Victoria Police releases criminal history information on the basis of findings of guilt regardless of whether or not a conviction is recorded. Victoria Police releases police records in accordance with any or all of the following guidelines:
- If the individual was an adult (seventeen years or over) when last found guilty of an offence and ten years have elapsed, no details of previous offences will be released.
- If the individual was a child (under seventeen years) when last found guilty of an offence and five years have elapsed, no details of previous offences will be released. (Exception: court orders on care/protection applications will not be released regardless of the age of the order).
- If the last finding of guilt resulted in a non-custodial sentence or a custodial sentence of 30 months or less, the ten or five year period commences from the day the individual was found guilty.
- If the last finding of guilt is an appeal or re-hearing the ten or five year period will be calculated from the original court date.
- If the last offence qualifies to be released, then all findings of guilt will be released, including juvenile offences.
- 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, then only the offence(s) that resulted in a custodial sentence of longer than 30 months will be released. (Information Release Policy, Victoria Police, 2004).
Findings of guilt without conviction, good behaviour bonds, outstanding charges and traffic matters
Findings of guilt without conviction and findings resulting in a good behaviour bond are considered to be findings of guilt and will be released under Victoria Police policy. If the check shows that the individual has been charged with offences, or is under investigation regarding outstanding matters that have not yet been heard at court, Victoria Police will release details of the charges or pending matters and state that they are yet to be determined at court. Victoria Police only releases traffic offences where the court outcome was imprisonment or detention.
Exceptions There are some circumstances where a record that is over ten years old may be released. These are:
- if the record includes a term of imprisonment longer than thirty months.
- if the record includes a serious offence of violence or a sex offence and the records check is for the purposes of employment or voluntary work with children, elderly, disabled or vulnerable people.
- if the records check is for the purposes of employment in prisons, state or territory police forces or the gaming industry.
- in other exceptional circumstances where the release of older information is in the interests of crime prevention, the administration of justice or public safety.
[1] The following information concerning the release of police records in Victoria is repeated verbatim from the information release policy.
Offences outside Victoria
Where a police record with another Australian police force has been obtained, any relevant legislation (and/or release policy) affecting that police force will be applied (including Victoria Police’s ‘Information Release Policy’) before it is released.
Under various pieces of Commonwealth, State and Territory legislation a person has the right, in particular circumstances or for a particular purpose, to not disclose certain convictions (eg findings of guilt over a certain age). Such convictions (widely referred to as ‘spent’ or ‘rehabilitated’ convictions) will not be 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 policy). Please contact individual police jurisdictions directly for further information about their release policies and legislation.
Employment
Will a criminal record hurt my job prospects?
Some people put details of their activism proudly on their resumes as a demonstration of their conviction and concern. This can also allow them to explain and clarify the conviction of ‘trespass’, for instance, before it appears on a police records check. Others do not wish to disclose details of a criminal record for fear that it will limit their opportunities in the future. Generally, it is unlikely that a criminal conviction for a minor offence will automatically be a bar to employment. It will usually be assessed by the employer and considered according to the individual circumstances of the case. Unfortunately there are, however, cases of discrimination based on a person’s criminal record. Although there is only limited protection available to people who have been treated unfairly on the basis of having a criminal record, if you think you have been treated unfairly, you may have a remedy and should seek legal advice.
The law concerning the rights of employers to enquire as to the criminal histories of prospective employees is uncertain. However, as a general rule an employee will be under a duty to respond honestly if an employer asks a specific question about a criminal history and that question and the criminal history are relevant to the employment. On the other hand, if there is no connection between the duties to be performed, the employer’s question and the employee’s criminal history, then an employee is entitled to refuse to answer.
If an employer does ask about your criminal history you have to decide whether to disclose it. A failure to disclose may backfire if contradictory information appears on your police check.
Note that once you are employed an employer does not have a general right to enquire as to your criminal status, unless your employment is subject to regulations or a contract requiring ongoing disclosure.
The law allows you to withhold information about old convictions except in certain circumstances. The law is different for Commonwealth and State offences.
Commonwealth offences
Part VIIC of the Crimes Act 1914 (Cth) provides that where a conviction for an offence has been pardoned, quashed or spent, the person is:
- taken to have never been convicted of the offence; and
- not required to disclose the fact that they were charged with or convicted of the offence.
This right of non-disclosure of spent convictions applies to the disclosure of information “to any person, for any purpose” and, therefore, will apply to requests for information made by an employer to an applicant during the recruitment process.
A person’s conviction becomes “spent” if they have been granted a pardon, or they were not sentenced to imprisonment for more than 30 months and the relevant “waiting period” has expired. The waiting period is 5 years from the date of conviction if the person was treated as a juvenile in relation to the offence, or 10 years in all other cases. If a person is convicted summarily of another offence which was committed during a waiting period, the court may order that the first conviction not become spent until the waiting period for the later conviction has ended. Where the later conviction is by indictment (a serious criminal matter), the court has no discretion in relation to the treatment of the earlier conviction – it will not become spent until the waiting period for the later conviction has expired.
The right of non-disclosure does not apply in certain circumstances. These exclusions are listed in Division 6 of Part VIIC and Regulation 8(1) of the Crimes Regulations 1990 , and include, for example:
- prospective employees or members or law enforcement agencies and intelligence security agencies;
- bodies involved in the care, instruction or supervision of minors, for the purpose of finding out whether a prospective employee has been convicted of a “designated offence” (namely a sexual offence or any other offence against a person who was under 18 at the time the offence was committed);
- convictions for designated offences for the purpose of assessing the suitability of a person for certain positions with the Australian Defence Force; and
- convictions for offences involving violence for prison administration positions.
Victorian state law
It is not clear in Victoria that a person does not have to disclose the fact that they were charged with or convicted of a State offence if that offence is not disclosed on a Victoria Police check. As a general rule you need not disclose such matters. If you are discriminated against because you have not disclosed a matter under these circumstances, you should seek legal advice.
Employment in the public service
Criminal record checks for jobs advertised as “public sector positions” are covered by specific recruitment guidelines. The guidelines say that checks should only be performed on the people who are to be offered jobs. Generally, checks for convictions, other than sexual convictions, will only go back 10 years, but the guidelines do not explicitly state this. Minor offences more than 10 years old may be treated as spent convictions.
The guidelines suggest that people be given an opportunity to discuss any conviction, usually with the human resources manager of the department, before a final decision about employment is made. The department should consider a number of circumstances, including the age of the conviction, your age at the time, number of convictions, the sentence imposed by the court and any extenuating circumstances. The main thing for your potential employer to consider is whether the criminal record is relevant to your employment.
Holding public offices
Having a criminal record may impact on your ability to hold a public office, as set out below:
Local councils
In Victoria a person is disqualified from becoming or remaining as a Councillor if they have been convicted of an offence committed when they were 18 or more years of age which is punishable upon first conviction for a term of imprisonment of 5 years or more anywhere in Australia. The disqualification lasts for seven years. (Section 28, Local Government Act 1989 Vic)
State Parliament
Under the Victorian Constitution, any person who, when over 18 has been convicted of an indictable offence (a serious crime) which is punishable by more than 5 years imprisonment may be disqualified from holding a seat as a member of State Parliament.
Most convictions arising out of nonviolent actions are not indictable, but you should check with a lawyer if you face a conviction which might exclude you.
Federal Parliament
The Commonwealth Constitution states that persons convicted of offences which are punishable by one year of imprisonment or longer cannot hold a seat in Federal Parliament. This refers to the maximum sentence, not the sentence you may have received – so if you were convicted of a crime that has a maximum sentence of 2 years imprisonment, but were just ordered to pay a fine, you may still be ineligible.
Defence Forces
The Defence Forces require you to declare any criminal record. They also check your record. The Defence Forces do not have a blanket policy of not employing people with criminal records. However, they may decide not to offer you employment on the basis of your criminal record if they deem it appropriate to do so.
Solicitors and barristers
In order to be admitted to practice, you have to establish that you are of “good fame and character” and should disclose any information that may bear on this point, such as criminal convictions. It is highly recommended that you disclose spent convictions, as failure to disclose such information could be interpreted as misleading and tending to show that you are not of “good fame and character”.
Whilst some people have been admitted to practice despite their criminal record, others have been refused admittance because of it. Where a legal practitioner commits a criminal offence in his or her personal capacity, the offence may be characterised as professional misconduct if it indicates that the offender is unfit to practice. (For more information you can Contact the Law Institute of Victoria or the Board of Examiners for Legal Practitioners).
Registration of professionals
Medical practitioners, social workers and psychiatrists, nurses, dentists and optometrists, as well as other professionals, have to be registered, and the registration board may refuse to register, or may revoke the registration of, a person who has been convicted of a felony or misdemeanour, or who is not of good character.
Jury service
A person is disqualified from jury service if he or she:
- has ever committed an offence carrying life imprisonment;
- has in the last 10 years been detained in an institution or imprisoned;
- has in the last 5 years been detained in a juvenile institution;
- has been put on a recognisance to be of good behaviour; or
- is currently subject to a court order, bail parole or sentence.
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 practises in employment law.
Going overseas
Some countries require you to disclose any past arrests or convictions on visa applications. Laws vary from country to country, and you should call the relevant consulate or embassy to find out the approach taken to convictions by each particular country. Two examples are as follows:
United States
After 2001, the United States passed new laws that affected some aspects of the non-immigrant visa process and entry–exit procedures. In addition to being satisfied that the applicant intends to honour the terms of the visa by returning home, the consular officer must evaluate the security risk presented by the applicant. Visa applications take longer to process.
Application forms for US tourist or work visas ask the applicant whether he or she has ever been arrested for an offence, even if pardoned or the subject of an amnesty. When applying for your visa you must declare your criminal record and state the date of the offence, the wording of the charge and the punishment. Every application is assessed on its own merits.
The Embassy usually overlooks “misdemeanors” (similar to our summary offences). To get more information contact the US Embassy or go to the Destination USA website.
United Kingdom
Australian citizens with or without criminal convictions can enter the UK without applying for a visa if they are planning to stay for less than 6 months.
If you are applying for a visa (called an Entry Clearance Certificate) for longer than 6 months you must declare your criminal record and provide documentation regarding the conviction with your application form. An Examiner, who decides whether a visa will be granted, then assesses your application.
Minor offences that have only attracted a fine will usually be overlooked. If you have spent 6–30 months in jail, you will have to wait until your conviction is spent before you can enter the UK. For more information contact the British Consulate General in Canberra on Tel: 1902 941 555, or visit www.uk.emb.gov.au .