Spent Convictions (Vic)
Criminal convictions can hinder a person’s ability to secure employment and travel internationally. The Spent Convictions Act 2021 established a state government scheme to clear certain convictions from a person’s criminal record. This legislation allows for automatic clearance of certain convictions and provides an avenue for people to apply to the court for a serious conviction to be spent.
Spent Convictions Scheme Victoria
The Spent Conviction Scheme is designed to assist Victorians who previously committed an offence but are subsequently rehabilitated. A spent conviction is removed from a criminal record. The person does not need to disclose a spent conviction or provide any information relating to the offence or conviction. However, the police, courts and law enforcement agencies continue to have access to full criminal histories to protect community safety and to allow for the administration of the justice system.
It is common for prospective employers to ask about criminal convictions, especially in certain professions. Often employers will undertake a police check on potential employees.
The prospective employee should disclose all unspent convictions. Dishonesty can damage the employer-employee relationship, and a failure to disclose previous convictions can be the basis of termination of employment. An employee does not have to disclose a spent conviction to an employer except in limited circumstances. These spent convictions will also not appear during a standard criminal history check.
No Victorian law prohibits employers from discriminating against someone because of a current criminal record. However, an employer cannot discriminate because of a spent conviction.
Automatic Immediate Spent Convictions Victoria
Under this new legislation, some criminal convictions are spent immediately. From 1 December 2021, convictions are cleared from a criminal history if:
- The court does not record a conviction;
- The court makes a qualified finding of guilty under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 or according to a similar foreign law;
- The offence was committed when the person was younger than 15 years;
- The Children’s Court or similar court only imposed a fine upon conviction; or
- It is an infringement conviction (or similar foreign conviction).
If a condition was attached to a conviction, the conviction is not spent until all attached conditions are completed.
Automatic Spent Convictions After Expiry Period Victoria
Other criminal convictions stay on a person’s record until the conviction period expires. This applies, for instance, when a judge or magistrate records a non-serious conviction under section 8 of the Sentencing Act 1991. A non-serious conviction has a conviction period of five years for a child or young offender and ten years in all other cases. The conviction period commences on the date that the court finds the offender guilty. However, if there is a subsequent conviction, the conviction period may recommence.
Not all convictions are automatically spent following the passage of time. With serious convictions, a person can apply to the Magistrates Court of Victoria for their serious conviction to be “spent” after the conviction period expires. Serious convictions include sexual offences, serious violence offences, and any other offence for which the court imposes a sentence of more than 30 months imprisonment or detention.
The legislation is retrospective, applying to convictions imposed before or after this date. Applications can be made from 1 July 2022.
With serious convictions, notice must be given to the Chief Commissioner of Police and Attorney General as soon as possible. If neither the Chief Commissioner nor the Attorney General makes submissions, the application can be determined without hearing. Alternatively, if a hearing is warranted, it will be a closed hearing. The Act directs the court to consider the following factors in their deliberations:
- The circumstances, nature and seriousness of the offence;
- The impact of the offence on any victim;
- Any risk to public safety;
- The applicant’s personal circumstances;
- The maturity and age of the applicant when they committed the offence;
- Demonstrated rehabilitation;
- Unique background factors that affect Aboriginal or Torres Strait Islander people; and
- Any other factor the court finds relevant.
This application is open to offenders who were, at the time of conviction, children under 18 or young offenders under 21. An adult is also eligible if they received no imprisonment term for a sexual or serious violence offence or received a term of five years or less for another type of offence.
If the court refuses the application, the person cannot make another application for two years. Even then, the person can only bring a new application if they provide new information to the court in support of the application.
Armstrong Legal can help if you would like more information about spent convictions. The team can also help if you would like to apply to the court to clear a serious conviction from your record. Please contact the team today on 1300 038 223.