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.
What is a spent conviction?
A spent conviction is a conviction for an offence that you were found guilty of that no longer appears on most criminal record checks.
Convictions become spent in three ways:
- 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 these 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 a spent conviction or information relating to it
- someone cannot request that you disclose a spent conviction or information relating to it.
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?
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.
People with criminal convictions can face barriers in finding opportunities across many aspects of life, including employment, accommodation, or education.
Discrimination may mean that you are refused employment, accommodation, an educational opportunity, or the provision of a licence on the basis of previous conviction history, even though that conviction is spent.
The changes to the law recognise that people should not be treated unfavourably 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. When Johnny was 16, he received a conviction for vandalism. 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.
A landlord refuses to rent to an applicant because they have knowledge of a previous conviction, even though the conviction occurred over 10 years ago when the applicant was 14, and the applicant has committed no further offending since that time.
A landlord is speaking with a tenant and asks whether the tenant has a criminal record. As the tenant’s previous conviction is spent, the tenant answers ‘no’. The landlord asks again, inquiring if there is anything that would not show up on a criminal record check. The tenant feels comfortable to respond as the previous conviction was a minor offence a long time ago and is covered by the spent convictions scheme, so responds ‘yes’, but explain that the conviction is now spent so won’t show up. The next week, the tenant’s lease is terminated.
How does the law protect me?
Discrimination is against the law if it happens in an area of public life such as:
- school, TAFE or university
- a club or sporting organisation
- shops and restaurants
- aged care, hotels or rental properties.
Victoria is unique in having a positive duty, 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 are currently creating Spent Convictions Guidelines, which will provide further information for both duty holders, such as employers, and rights holders on how to incorporate the changes. These will be available from July 2022.
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:
- police checks for some jobs
- legal proceedings
- and certain information sharing between police, courts, tribunals and certain government departments or agencies.
- it is necessary to comply with a Court.
Find out more about general exceptions.
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.