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Spent conviction

Everyone is equal and we should all be treated the same.

 

It is against the law for someone to treat you unfairly because of a previous conviction that no longer appears on your criminal record.

Download our Spent Conviction Discrimination Guideline

What is a spent conviction?

A spent conviction is a conviction that no longer appears on most criminal record checks.

Convictions become spent in three ways:

  • immediately
  • on completion of the conviction period
  • on application to the Magistrates’ Court.

The way in which a conviction will become spent depends on factors such as the age at time of offence, the type of offence, and the length of the conviction period. Read more about the types of spent convictions in the Spent Convictions Act 2021.

When a conviction is spent:

  • it will not appear on a criminal record check, unless the check is conducted for particular types of employment, such as working with children, in certain areas of government and law enforcement and in firearms licensing
  • you are not required to disclose, and someone cannot request that you disclose, a spent conviction or information relating to it except in limited circumstances when required by law.

However, full criminal histories will continue to be disclosed to police, courts, and other law enforcement agencies for the administration of the justice system and to protect community safety.

What is spent conviction discrimination?

People with criminal convictions can face barriers in finding opportunities across many aspects of life, including employment, accommodation, or education.

Spent conviction discrimination is when someone treats you unfairly because of a previous conviction, despite that conviction being classified as spent and no longer appearing on most criminal record checks.

Discrimination may mean that you are refused employment, accommodation, an educational opportunity, or inclusion in a club or sporting organisation  on the basis of a previous conviction, even though that conviction is spent.

The changes to the law recognise that people should not be treated unfairly because of a previous criminal conviction that is covered by the scheme and will help people to move on with their lives and participate in society.

Examples of spent conviction discrimination

In the workplace

Johnny lives in a small town in regional Victoria and is looking to apply for a job. When Johnny was 16, he received a conviction for vandalism which is now spent after the conviction period was completed. Johnny is now 30 and has not had any further convictions.

When Johnny applies for a job at the local restaurant, the manager remembers that Johnny was in trouble with the police as a teenager. The manager refuses to employ Johnny because of his spent conviction. This is unlawful discrimination on the basis of a spent conviction.

In accommodation

Rajesh is looking to rent a new apartment. He finds a private listing that he likes and gives the landlord a call. During the conversation the landlord asks Rajesh if he has a criminal record.

Rajesh feels comfortable to respond as the previous conviction was a minor offence a long time ago and is covered by the spent convictions scheme. He responds ‘yes’, but explains that the conviction is now spent so won’t show up. The landlord tells Rajesh that he doesn’t want to rent his house to ‘a criminal’ and refuses to rent to Rajesh because of his previous conviction. This is unlawful discrimination on the basis of a spent conviction.

In goods and services

Anita is thinking about a change in her career, so she visits a career counselling service that takes walk-ins. The counsellor asks Anita what industries she is interested in and whether there is anything else relevant they might need to know, including any history of criminal convictions. The counsellor doesn’t let Anita know that she doesn’t have to disclose any spent convictions.

Anita mentions that she has a previous conviction that is now spent so it shouldn’t be relevant in the industries she’s hoping to get into. Later, Anita gets a call from the career counselling service saying that she will not be able to access their services as they don’t take on clients with criminal backgrounds because of the risk to their reputation.

This is unlawful discrimination on the basis of a spent conviction.

How does the law protect me?

Discrimination is against the law if it happens in an area of public life such as:

Victoria is unique in having a positive duty to eliminate discriminationsexual harassment and victimisation as far as possible, which creates an opportunity to prevent unlawful behaviour. It helps organisations put a healthy workplace culture in place, just as occupational health and safety laws require employers to take appropriate steps to ensure injuries don’t occur.

Organisations must also put measures in place to ensure that complaints are responded to swiftly and appropriately when they do arise.

In the workplace, while a person is responsible for their own unlawful behaviour, employers can also be held responsible.

It is also against the law to victimise a person, which means treat them badly, because they have made complaint about discrimination or helped someone else make a complaint.

You can make a complaint

Get help from the Victorian Equal Opportunity and Human Rights Commission.

You can make a complaint to us if you think you have experienced:

If you wish, someone else can make a complaint for you.

Find out how the Commission helps people resolve complaints. We can also give you information about your rights.

We have developed the Spent Conviction Discrimination Guideline to help Victorian duty holders to meet their legal obligations under the Equal Opportunity Act. It provides practical guidance on how to prevent and respond to spent conviction discrimination, including complying with the positive duty.

This guideline will also assist individuals who feel they have experienced spent conviction discrimination and are looking for clarification on their rights, and the responsibilities owed to them by an organisation or body. This includes understanding how information about their spent conviction can and can’t be used and what to do if they believe they have been treated unfairly.

Are there any exceptions under the law?

There are some exceptions in the Equal Opportunity Act that mean it’s not against the law to discriminate because of spent convictions in particular circumstances. For example, spent conviction discrimination is not against the law if:

  • it is necessary to comply with or is authorised by another law. There are three main areas where a spent conviction can still be disclosed under the Spent Convictions Act:
    1. police checks for some jobs
    2. legal proceedings
    3. and certain information sharing between police, courts, tribunals and certain government departments or agencies.
  • it is necessary to comply with a Court order
  • it is necessary to protecting the wellbeing of children
  • it involves domestic and personal services.

Find out more about general exceptions.

There are also exemptions under the Spent Convictions Act which make disclosure of spent convictions lawful, see the Department of Justice and Community Safety website for more information.

My human rights under the Charter

Every Victorian has the right to equal and effective protection against discrimination, and to enjoy their human rights without discrimination.

Victoria’s Charter of Human Rights and Responsibilities contains 20 basic rights that promote and protect the values of freedom, respect, equality, and dignity.

The Victorian Government, local councils and other public authorities must always consider these rights when they create laws, develop policies, and deliver their services.

Find out more about your human rights under the Charter and what to do if you think they have been breached.

For more information

The Commission is unable to provide advice on whether you have a spent conviction. For legal advice you can contact Victoria Legal Aid, a community legal centre or a private law firm for more information on your spent conviction.

For more information on spent convictions please see the Department of Justice and Community Safety website.

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The Victorian Equal Opportunity and Human Rights Commission acknowledge we work on the traditional lands of the Wurundjeri people of the Kulin Nation. We also work remotely and serve communities on the lands of other Traditional Custodians.

We pay our respects to their Elders past and present.