Unfortunately, there’s no way to sugar coat it. Having a criminal record is a barrier to obtaining employment following a court proceeding. This is particularly the case where someone has been convicted of violent, sexual or dishonesty related offences, such as fraud and theft. The stigma associated with criminal convictions is often the biggest and most difficult barrier to overcome when attempting to gain employment following a conviction, which can lead to frustration and disappointment following a plea or guilty verdict. Criminal convictions can also have extensive ramifications for individuals who require a Working with Children Check for their employment.
Whilst there is no way around the associated stigma of having a criminal conviction and the ability for employers to conduct a police check during their application process, in Victoria offenders convicted for minor or antiquated offences may have their conviction spent under the Spent Conviction Scheme. This scheme is groundbreaking and is aimed at solidifying the rehabilitation of individuals who have been involved in the justice system.
National Police Checks
Across Australia, a national police check can be required by employers, organisations and regulators in order to gain an official record of any criminal convictions. A national police check will disclose any criminal conviction, aside from ‘Spent Convictions’, which do not appear on national police checks.
National police checks will also not disclose any information in relation to a pending police investigation, any criminal charges where a court has not yet decided, and findings of guilt by reason of mental impairment. Whilst it is not possible to avoid a national police check, if the information contained in the check is incorrect, you can apply to the police to dispute it.
Working with Children Checks
An ancillary implication of having a criminal conviction in relation to employment is the potential impact on an individual’s Working with Children Check. These certificates are essentially a screening process for assessing or re-assessing people who work with or care for children in Victoria to ensure the safety of children and are empowered by the Working with Children Act 2005 (WORKING WITH CHILDREN ACT 2005 (NO 57 OF 2005) (austlii.edu.au)). A major component of WWC is an assessment of criminal history, with particular focus being on whether an applicant has been convicted of a serious violent, sexual or drug related offence.
Unfortunately, convictions for these types of offences can seriously impede the ability to successfully apply for a WWC. Additionally, individuals convicted of a serious sex offence, who are registered under the Sex Offenders Registration Act, cannot apply for a WWC. Whilst criminal convictions may equate to being knocked back from an initial application, it is possible to appeal negative decisions to the Victorian Civil and Administrative Tribunal, who may either suspend, confirm, set aside, or order a reconsideration of the negative decision. Appeals must be lodged within 28 days. It should be noted that individuals who have been issued a negative notice cannot re-apply for a minimum of 5 years.
Luckily, for more minor and antiquated offences, the Spent Conviction Scheme may apply.
The Spent Conviction Scheme – What is it?
Whilst having a criminal conviction has historically been a barrier to employment, this has somewhat been addressed in Victoria through the implementation of the Spent Conviction Scheme.
The Spent Conviction Act was implemented in 2021 and establishes a scheme for convictions to be spent automatically or on application. The Act provides rules about when an individual does or does not need to disclose convictions on their criminal record, with the aim of removing unfair barriers faced by Victorians who have committed an offence but have rehabilitated.
Spent Convictions do not show up on police checks and individuals who are covered by the scheme do not have to disclose to a prospective employer that they have a criminal record.
Who is eligible?
There are numerous factors that influence whether a conviction can become spent. These typically include:
- Age at the time of offending – Young offenders are more likely to have successful applications.
- Whether the court sentenced with or without conviction – if a sentence was without conviction, then the scheme will likely apply.
- Whether the conviction was for a serious violence or sexual offence – if the conviction relates to either of these, then the Scheme will not apply.
- If the court imposed a custodial sentence and if so, how long it was – if the sentence was over 5 years, then the Scheme will not apply.
- If the court ordered a fine.
- How long ago the conviction was.
- What has happened since the conviction, such as whether there are any subsequent convictions – reoffending will likely stop the scheme from applying.
When are convictions spent immediately?
Several types of convictions are spent immediately, therefore requiring no application to be made. These include:
- Where the offender was under 15 years old at the time of the offence.
- Where the court found the offender guilty but made the order ‘without conviction’.
- Where the court found the offender to be unfit to plead and the offender is found guilty under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
- Where the conviction relates to a Children’s Court fine.
- Infringements for drunk or drug driving, excessive speeding.
Alternatively, some convictions are spent once the offender has completed the relevant conviction period. For adult offenders (21 years or older when sentenced) this period is 10 years. For children and young people (who were between 15 and 20 at the time of conviction), the period is 5 years. Conviction periods commence from the date that the court finds the offender guilty and may restart if they reoffend.
Offences Requiring Application
Whilst minor offences are often automatically spent, convictions for more serious offending may require application in the Magistrates’ Court. This includes convictions received when an offender is 21 years or over, where the conviction relates to:
- Sexual offences without a prison sentence.
- Serious violence offences without a prison sentence.
- Other offences where the court sentenced the offender to prison or youth detention for more than 30 months but less than 5 years.
Offences Where the Scheme Does Not Apply
Sexual or serious violence offences that receive a prison sentence can never be spent. The same goes for any offence wherein the offender received a prison sentence longer than 5 years in length.
In Conclusion
Given the availability of spent convictions in Victoria, there is light at the end of the tunnel for those who have been convicted of an offence who are seeking employment. However, the availability of spent convictions depends on several factors, most importantly the sentence imposed and whether or not a conviction was recorded. For more information on this topic, don’t hesitate to get in touch with Galbally Parker criminal defence lawyers.
