Individuals can request their own police record check. Victoria Police release information based on findings of guilt irrespective of whether a conviction was recorded. Minor offences may become ‘spent convictions’ over time.
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 (which is indexed each financial year – as of 1 July 2014, the fee is $44.90, it’s reduced to $16.90 in some circumstances). 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 “police record checks”).
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.
However, you should be aware that there are a number of private companies that trade in criminal record information. They do not obtain consent from subjects before conducting searches, and they are not bound by the Victoria Police Information Release Policy.
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 will be released.
•If the individual was a child (under 17 or 18 years*) when last found guilty of an offence, and 5 years have elapsed, no details of previous offences will be 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 5-year period commences from the day the individual was found guilty.
•If the last finding of guilt is an appeal or re-hearing, the 10- or 5-year period will be calculated from the original court date.
•If the last recorded or most recently committed offence qualifies under one of these guidelines to be released, then all findings of guilt will be 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, then only the offence(s) that resulted in a custodial sentence of longer than 30 months will be released.
* The age jurisdiction of the Criminal Division of the Children’s Court was increased on 1 July 2005. Because this change does not operate retrospectively, offences committed prior to this date will be released by police in accordance with the previous age jurisdiction of 17 years.
Findings of “guilt without conviction” and findings resulting in a good behaviour bond are considered to be findings of guilt, and are released. If the check shows that the individual has been charged with offences – or is under investigation regarding 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 on the certificate that the matter/charge cannot be regarded as a finding of guilt. Victoria Police only releases traffic offences when the court outcome was imprisonment or, for young people, detention.
There are some circumstances where a record that is over 10 years old may be released. These include if the record check is for the purposes of:
•registration with a child-screening unit and/or Victorian Institute of Teaching;
•screening in relation to the Assisted Reproductive Treatment Act 2008 (Vic);
•registration and accreditation of health professionals;
•employment in prisons or state or territory 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);
•Victorian taxi accreditation under the Transport (Compliance and Miscellaneous) Act 1983 (Vic);
•applications for firearms licences under the Firearms Act 1996 (Vic);
•employment or voluntary work with children or vulnerable people – this is only if the record includes a serious offence of violence or a sex offence.
A record that is over 10 years old may be released if the record contains serious offences where the result was “acquitted by reason of insanity or mental impairment” or “not guilty by reason of insanity or mental impairment”.
In exceptional circumstances, older criminal record information may be released by police if it is considered to be in the interests of crime prevention or the administration of justice. It is not known what police regard as “exceptional circumstances”; this is a broad discretion.
A personal copy of your criminal record will not usually include:
•not guilty outcomes;
•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 (formerly PERIN Court) orders;
•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 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.
It is important to 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 (see “What will my police record show?”).
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)), and the outcome is recorded in a similar manner as a police caution. The record is not available to the public, including potential employers.
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 (and/or policy) affecting the records of that police force will be 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) 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 policies).
Spent conviction 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. These include jobs as judges, magistrates, police officers, prison officers, teachers, teachers aides, or providers of childcare services.
The law concerning 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, you should 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 and 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));
•taxi drivers and bus drivers (s 132, 132D Transport (Compliance and Miscellaneous) Act 1983 (Vic)); and
•aged-care workers and volunteers in aged-care facilities (s 10A–1 Aged Care Act 1997 (Cth)).
(See also “Working with children checks”).
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) 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 Australian Human Rights Commission has published Discrimination in Employment on the Basis of Criminal Record and other useful information, which can be found at www.humanrights.gov.au/discrimination-employment-basis-criminal-record.
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 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 Legal services that can help, for some possible avenues of assistance).