Spent Convictions – 10 Frequently Asked Questions
This article was first published on 23 February 2022. The enactment of the Spent Convictions Act 2021 (Vic) means that certain findings of guilt may now become spent. Please read our articles about spent convictions to read more about the current legislation and process.
The article Spent Convictions – 10 Frequently Asked Questions is written by Kate Da Costa, Partner, Doogue + George Defence Lawyers.
Kate is one of our Partners and is part of our Sunshine team. She regularly represents clients at the Sunshine Magistrates’ Court for various criminal legal issues.
Kate has been working exclusively in the field of criminal law. She has experience in all Victorian criminal law jurisdictions including in the High Court of Australia.
Do you have an old conviction that is holding you back from a new job or career? Legislation introduced in Victoria last year finally makes it possible to have old convictions removed from your Police Record Check. But there are rules and conditions attached to the spent convictions scheme. Here are answers to the important questions.
1. What is a spent conviction?
Unless an exemption applies, if a conviction is spent:
- it will not appear on your police record check;
- a person cannot ask you to disclose information about it; and
- you do not have to tell anyone about it.
A conviction can be spent:
- automatically; or
- by making an application to the Magistrates’ Court of Victoria.
2. When is a conviction spent immediately?
A conviction will be spent immediately if:
- you received a without conviction penalty at Court
- you were under 15 years of age
- you received a conviction fine in the Children’s Court
- it relates to an infringement
- you were found unfit to be tried and at a special hearing the Court found you committed the offence
It is important to remember that if a Court imposed a condition with your penalty, the conviction is not spent until you have completed all of the conditions. For example, an Adjourned Undertaking with conditions to be of good behaviour for a period of time and to complete an offence specific course, will not be spent until those conditions have been completed.
3. When will a conviction be spent automatically?
If you are an adult, you must complete a crime-free period of 10 years. Your conviction will then be automatically spent. If you are a child, the crime-free period is 5 years.
The crime-free period starts from the date the Court imposed the conviction. If you have multiple convictions, the crime-free period starts from the date of the most recent conviction.
4. When do I have to make an application to the Court for my conviction to be spent?
If you have a conviction for a serious offence, you may need to make an application to the Magistrates’ Court of Victoria for the conviction to be spent. Serious convictions include convictions for:
- sexual offences
- serious violence offences
- other offences where the Court sentenced you to prison or detention in a youth justice facility for more than 30 months
You must have completed the relevant crime-free period before you can make an application.
5. How do I apply for my conviction to be spent?
Applications for serious offences to be spent can be made to the Magistrates’ Court of Victoria from 1 July 2022. If you wish to make an application for your conviction to be spent, contact an experienced criminal lawyer for advice and assistance with the application.
Find out more about how to make an application for your conviction to be spent here.
It is important to remember that some serious convictions can never be spent, for example, if you were 21 years or older at the time of sentencing and:
- the court ordered a prison sentence (of any length) for a serious violence or sexual offence; or
- for any other offence, the court ordered a prison sentence of more than 5 years.
6. Will my employer know about my spent conviction?
If your conviction is spent, you are not usually required to disclose it to anyone, including your employer.
However, some agencies have an exemption to receive spent conviction information on a police record check for employment purposes, such as:
- Commissioner for Corrections
- Court Services Victoria
- Victoria Police
Also, in some circumstances another law may require you to disclose your spent conviction to an employer. For example, some professions have a positive duty of disclosure, such as health practitioners under the Health Practitioners National Law (Victoria) Act 2009.
7. Will my spent conviction be disclosed if I am applying for a firearm licence?
Yes. There are also exemptions for spent convictions to be disclosed if you are applying for certain licences, such as:
- Private security
- Professional Boxing and Combat Sports Board
- Gambling and casino licences
- Liquor licensing
8. What about spent convictions and my driving record?
If a driving-related conviction is spent, in ordinary circumstances, it will not show up on a police record check for employment purposes.
However, a driver history report issued by VicRoads is different to a police record check. Driving convictions that are spent will continue to be released on a VicRoads driver history report.
9. Will a spent conviction stop me from getting a Working with Children Check?
The Working with Children Check process remains the same. This means that even if a person’s conviction is spent, police can still give the information to the Department of Justice and Community Safety as part of the police record check. This includes if you need a Working with Children Check as a volunteer.
10. What if someone discloses my spent conviction?
If someone discloses your spent conviction unlawfully or without your written consent, they could be committing an offence and may be penalised.
Discrimination on the basis of a spent conviction is also prohibited. If you are concerned that someone has treated you unfairly because of your spent conviction, you can contact the Victorian Equal Opportunity and Human Rights Commission to make an enquiry or complaint.
Finally, if you need assistance to make an application for an old conviction to be spent, contact Doogue + George Lawyers for legal advice and representation. Application can be made from 1 July 2022.