Victoria is the final state in Australia to pass a spent convictions scheme, meaning that minor convictions may be eligible to become “spent” from 1 December 2021. A spent conviction will no longer show on a police check or form part of a person’s criminal record after 10 years (or five years for a juvenile conviction) past the date of conviction, provided that the person does not re-offend during that time. Part of the rationale for this legislation is to reduce the damaging impact of prior convictions on people looking for employment.
When this legislation comes into effect on 1 December, some convictions will be spent with immediate effect. This includes scenarios where the conviction was not recorded by a court, or where the offence was committed by a person who was younger than 15 when the offence was committed. For most other convictions, the conviction will not be spent until after the 10 year period has passed.
However, serious convictions will not be automatically spent after 10 years. A serious conviction is a conviction where a term of more than 30 months of imprisonment is imposed, or where the conviction is for a serious violence or sexual offence. However, although these serious convictions do not become spent by default after the 10 year period, a person can apply to the Magistrates Court to have their conviction to be spent after the 10 year period if their imprisonment for this offence was not longer than 5 years.
What does all of this mean for employers?
There has been an increasing trend for employers to obtain criminal records checks as part of every recruitment processes. Where criminal record checks are carried out, spent convictions will no longer form part of a person’s criminal record and will not show up on these checks.
Employees or potential employees will not be required to disclose spent convictions to their employer, or to any other person. Additionally, a person cannot request that another person disclose the existence of a spent conviction, or information in relation to a spent conviction. However, police and courts will still have access to spent convictions, and the legislation designates a limited list of government entities who will have access to full records of criminal history in circumstances that include when a person is applying for a job with those government entities.
Additionally, spent convictions will be listed as a protected attribute in the Equal Opportunity Act 2010 (Vic) as of 1 December 2021. This means that it will be unlawful to discriminate against a person because of a spent conviction. Employers should consider including this in their discrimination and equal opportunity policies before the spent convictions legislation comes into effect.
For all other convictions that are not spent, Victorian employers are not prohibited from discriminating against a person on the basis of a criminal record under the Equal Opportunity Act. Some other Australian states, such as Tasmania, do prohibit discrimination on the basis of an irrelevant criminal record. Whether a criminal conviction is irrelevant depends on the inherent requirements of a particular position. A conviction relating to negligent driving is unlikely to be relevant to the inherent requirements of a receptionist role, but would be relevant for a bus driver. We recommend that employers outside of Victoria seek further advice about the discrimination legislation applying in their state or territory.
We also note that the Australian Human Rights Commission Regulations 2019 (AHRC Regulations) apply Australia wide and prohibit discrimination on the basis of an irrelevant criminal record. While there is no mechanism under the AHRC Regulations for an applicant to pursue a discrimination claim on the basis of an irrelevant criminal record in a court, an applicant can apply to the Australian Human Rights Commission for conciliation of their complaint. If conciliation is unsuccessful, the Australian Human Rights Commission may prepare a report with findings and recommendations, and an outline of all of the facts of the claim. However, while this report is public, any recommendations in the report are not enforceable.
Should you require assistance amending your discrimination and equal opportunity policies, or if you have any questions about these amendments, please contact Associate, Nicola Martin or another member of our team.