I  have been asked several times by clients when their criminal history will cease to show up in a police check. 

I had to reply that it will show up forever because Victoria did not have a spent conviction scheme for minor offences that existed in all other states in Australia. 

However, recently this changed.

Now, a spent conviction scheme does exist. 

In this article I will explain the criminal offences to which the scheme applies, when a court application is necessary and the benefits of the legislation.

The Spent Convictions Act 2021 was introduced to allow people who have worked hard to turn their lives around to move on from minor historical offending. 

In proposing the second reading of the Bill, then Attorney-General Jill Hennessy noted that a criminal record could affect a person’s life in many ways.

“It is a barrier to gaining and seeking employment. It rules out many professions and industries which impose a test of ‘good character’. It can exclude a person from university or TAFE, or from accessing practical training essential to those qualifications. It is a black mark on an application for housing. More fundamentally, it can mean a lack of hope, a lack of belonging and a feeling of being marked as an outsider,” she said.

Many convictions will be spent, that is, removed from most police checks, immediately from the date any conditions on the penalty are completed or automatically after a set ‘crime-free’ period is completed.

Convictions spent automatically

For offenders younger than 15 years-old, the conviction – even serious convictions – will become immediately spent once any conditions of the penalty have been completed. 

Those conditions might include drug and alcohol counselling. 

For offenders older than 15, convictions will only be spent immediately where a penalty was ordered ‘without conviction’, for an infringement conviction, a children’s court fine or a qualified finding of guilt under the Crimes Mental Impairment and Unfitness to be Tried Act 1997.

Crime-free period complete

If a conviction is unable to be spent immediately but is not a serious offence – a serious offence being where a court imposed a sentence of more than 30 months’ imprisonment or detention or a sexual offence or serious violence offence – then the conviction will automatically be spent as follows:

• If the person was aged 15 to 20 when they were sentenced, five years passes without any further offending.

• If the person was 21 years or older when they were sentenced, 10 years passes without any further offending.

Court applications

From July 1, a person convicted of a serious offence might apply to the court for their conviction to be spent if they have not engaged in any offending during the conviction period – being five years if the offender was a child or young offender and 10 years in any other case.

The spent convictions scheme does not apply to all offending. 

Serious violence offences and sex offences where imprisonment was imposed when committed by an adult over the age of 21 can never be spent.

Only limited agencies and employers might be able to obtain information about a person’s spent conviction or have legal permission to ask about it in special circumstances. 

These organisations are recorded in the Act and include courts, law enforcement agencies such as Victoria Police, other licence granting entities such as the Victorian Commission for Gambling and Liquor Regulation, and government departments including the Department of Justice and Community Safety for the purpose of working with children checks. 

It is important to note the Spent Convictions Act 2021 applies to past convictions as well as future convictions and that discrimination from other employers because of a spent conviction is unlawful under the Equal Opportunity Act 2010.

Speak to a solicitor if you are unsure how the spent convictions scheme applies to you.

• Patrick Smith is the principal of O’Brien and Smith Lawyers. This article is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. Neither Patrick nor O’Brien and Smith Lawyers accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your lawyer.

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