Spent Convictions in Victoria

A criminal conviction can continue to affect your employment, professional opportunities and personal life long after you have completed your sentence.

In Victoria, the Spent Convictions Act 2021 provides a scheme under which certain criminal convictions can become spent. A spent conviction generally does not appear on an ordinary criminal record check, and in most circumstances you are not required to disclose the conviction to another person.

However, the rules are not the same for every conviction. Some convictions become spent automatically, while others require an application to the Magistrates’ Court of Victoria.

There are also important exceptions, particularly for certain occupations, government agencies, law enforcement, firearms licensing and working with children.

If you have an old criminal conviction that is affecting your employment or other opportunities, a spent conviction lawyer in Melbourne can assess whether the conviction is already spent, when it is likely to become spent, or whether you may be eligible to apply for a spent conviction order.

What is a spent conviction?

A spent conviction is a criminal conviction that, under the Victorian spent convictions scheme, is no longer disclosed on most ordinary criminal record checks.

The purpose of the scheme is to allow people who have demonstrated rehabilitation and remained conviction-free for the required period to move forward without an old conviction continuing to affect their lives indefinitely.

When a conviction becomes spent:

it generally does not appear on an ordinary criminal record check;
you generally do not have to disclose the conviction;
another person generally cannot require you to disclose the conviction; and
discrimination because of a spent conviction may be unlawful in Victoria.

There are, however, important exceptions. Certain employers, government agencies and authorities may still be legally entitled to obtain or consider information about spent convictions.

How do convictions become spent in Victoria?

Under the Spent Convictions Act 2021, convictions can become spent in three principal ways:

Immediately
Automatically after the conviction period expires
By application to the Magistrates Court

The applicable pathway depends on matters including the person’s age, the offence, the sentence imposed and whether there have been subsequent convictions.

1. Convictions that are spent immediately

Certain convictions become spent without an application being made.

For example, the Magistrates’ Court identifies circumstances including where:

a conviction is not recorded by a court;
certain qualified findings are made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;
the offence was committed when the person was under 15;
the only penalty imposed by the Children’s Court was a fine;
the conviction is an infringement conviction.

There are also circumstances where a conviction will not become spent immediately until conditions attached to the penalty have been completed.

This means that simply having received a relatively minor sentence does not necessarily mean that a conviction is immediately spent.

2. Convictions that become spent automatically

For many convictions, no application to the court is necessary.

A conviction may become spent automatically once the relevant conviction period has expired, provided the conviction is not excluded as a serious conviction.

Generally, the conviction period is:

For a person who was an adult at the relevant time, the conviction period is generally 10 years.
For a person who was a child or young offender, the conviction period is generally 5 years.

The conviction period generally begins from the date on which the court made the finding of guilt constituting the conviction.

Can a new conviction affect the period?

Yes.

A subsequent conviction can, in certain circumstances, cause the conviction period to recommence. This is one reason why determining whether a conviction is spent can require consideration of a person’s complete conviction history rather than simply the date of one particular offence.

What is a serious conviction?

Some convictions are treated differently under the Victorian spent convictions scheme.

The Magistrates’ Court explains that a serious conviction includes:

a conviction for which a court imposed a sentence of more than 30 months’ imprisonment or detention;
a conviction for a sexual offence; or
a conviction for a serious violence offence.

Serious convictions may require an application to the Magistrates’ Court rather than simply becoming spent automatically.

This distinction is particularly important where a person has a significant historical conviction and wants to know whether they can obtain a spent conviction order.

Applying for a spent conviction order

Certain serious convictions can become spent following an application to the Magistrates’ Court of Victoria.

The application process is governed by the Spent Convictions Act 2021.

Eligibility depends on the circumstances of the conviction, including:

the person’s age;
the offence;
the sentence imposed;
whether imprisonment was imposed;
whether the offence was a sexual or serious violence offence; and
whether the required conviction period has expired.

For some adult convictions involving imprisonment of more than 30 months but not more than five years, an application may be available where the statutory requirements are satisfied. Different rules apply to children and young offenders.

What documents are required?

The Magistrates’ Court currently requires supporting material for an application for a spent conviction order.

This includes a recent National Police Check.

Additional material supporting the application may also be provided, including material concerning the person’s rehabilitation.

The application is made using the relevant Magistrates Court forms and supporting documents.

Because eligibility can depend on the precise offence and sentence imposed, obtaining legal advice before filing an application can help ensure that the correct pathway is followed and relevant material is put before the court.

Does a spent conviction disappear from your criminal record?

Not necessarily in the sense that the underlying historical court record ceases to exist.

A spent conviction is better understood as a conviction that is withheld from disclosure in circumstances covered by the spent convictions scheme.

A spent conviction generally will not appear on an ordinary criminal record check. However, the Victorian Equal Opportunity and Human Rights Commission confirms that full criminal histories continue to be available to police, courts and other law enforcement agencies for purposes including administration of justice and community safety.

This distinction is important.

Spent does not necessarily mean that every government agency, regulator or authority will be unable to access or consider the conviction.

Will a spent conviction appear on a police check?

In most ordinary circumstances, a spent conviction will not appear on a standard criminal record check.

However, there are exceptions.

The Victorian Equal Opportunity and Human Rights Commission identifies particular areas where spent convictions may still be disclosed, including certain:

employment checks;
government positions;
law enforcement roles;
firearms licensing matters; and
Working with Children Checks.

Therefore, if you need a police check for employment, professional registration, licensing or another regulated purpose, you should not assume that a spent conviction will necessarily be disregarded.

What about a Working with Children Check?

A Working with Children Check is different from an ordinary police check.

The Working with Children Check assesses criminal history and other relevant information for people working or volunteering with children. It can therefore operate differently from an ordinary criminal record check.

A spent conviction does not necessarily mean that a person will automatically pass a Working with Children Check or that relevant historical information cannot be considered.

If your employment involves children, you should obtain specific legal advice about the interaction between the spent convictions scheme and the Working with Children Check.

Do I have to tell an employer about a spent conviction?

Generally, the spent convictions scheme means that a person is not required to disclose a spent conviction, except where an applicable legal exception applies.

This is an important protection for people who have successfully completed their sentence and remained conviction-free.

However, the correct answer depends on the particular job and the legislation governing the position.

For example, some employment involving:

children;
government;
law enforcement;
firearms;
regulated professions; or
other sensitive areas

may be subject to specific disclosure requirements or exemptions.

You should therefore obtain legal advice before deciding whether to disclose an old conviction in response to an employment or licensing question.

Can an employer discriminate against me because of a spent conviction?

Victoria provides specific protection against discrimination because of a spent conviction.

The Equal Opportunity Act 2010 recognises spent conviction as a protected personal characteristic.

Subject to applicable exceptions, treating someone unfavourably because of a spent conviction can constitute unlawful discrimination.

This protection can apply in areas including:

employment;
education;
accommodation;
clubs and sporting organisations;
goods and services; and
other areas of public life.

There are, however, statutory exceptions. For example, discrimination may be lawful where disclosure or consideration of the conviction is authorised or required by another law, required by a court order, necessary for the protection of children, or falls within another applicable exception.

Can a lawyer help with a spent conviction?

Yes.

A criminal lawyer can assist by:

reviewing your conviction history;
identifying when convictions were imposed;
examining the sentence imposed for each conviction;
determining whether a conviction may already be spent;
calculating the applicable conviction period;
identifying whether a subsequent conviction affects eligibility;
determining whether an application for a spent conviction order may be available;
preparing supporting material;
assisting with a Magistrates’ Court application; and
advising about disclosure requirements for employment, licensing or other purposes.

For a person whose employment or professional opportunities are being affected by an old conviction, obtaining advice can be particularly important before making a disclosure or submitting an application.

There is no single answer.

The applicable period depends on the circumstances of the conviction.

For many convictions, the relevant period is:

5 years where the person was a child or young offender; or

10 years for other offenders.

Some convictions may be spent immediately, while serious convictions may require an application to the Magistrates’ Court.

A new conviction can also affect the calculation.

If you provide a lawyer with your conviction and sentencing dates, they can assess the applicable provisions and determine what options may be available.

Spent Conviction Lawyer Melbourne

If you have an old criminal conviction that is affecting your employment, professional registration, licensing or other opportunities, it is important to establish exactly how the Victorian spent convictions scheme applies to you.

At Brancato Law, we can review your circumstances and provide advice about whether your conviction may already be spent, when it may become spent, or whether you may be eligible to apply for a spent conviction order.

Contact Brancato Law for advice about spent convictions in Victoria.

Frequently Asked Questions

What is a spent conviction in Victoria?

A spent conviction is a conviction that, under Victoria’s spent convictions scheme, is no longer disclosed on most ordinary criminal record checks. There are important exceptions for certain employment, government, law enforcement, licensing and other purposes.

How long before a conviction becomes spent in Victoria?

Generally, the conviction period is five years for a child or young offender and 10 years for other offenders, although some convictions may be spent immediately and some serious convictions require an application to the Magistrates’ Court.

Do I need to apply for a spent conviction?

Not necessarily. Some convictions become spent automatically. Certain serious convictions require an application to the Magistrates’ Court.

Can a sexual offence become spent?

Some sexual offences can potentially become spent, but different and more restrictive rules apply. The particular offence, sentence, age of the offender and other circumstances must be considered. Legal advice should be obtained before assuming that a sexual offence is eligible.

Can a serious conviction become spent?

Some serious convictions can become spent following an application to the Magistrates’ Court if the statutory eligibility requirements are satisfied.

Will a spent conviction show on a police check?

Generally, a spent conviction will not appear on an ordinary criminal record check. However, there are exceptions for particular types of employment, government and law enforcement roles, firearms licensing and other legally authorised purposes.

Can an employer ask me about a spent conviction?

Generally, you are not required to disclose a spent conviction except where an applicable legal exception requires or permits disclosure. The precise requirements depend on the nature of the employment and applicable legislation.

Can I be refused a job because of a spent conviction?

Discrimination because of a spent conviction is generally unlawful in Victoria, subject to statutory exceptions. Certain occupations and roles may be subject to specific disclosure and screening requirements.

Can a spent conviction affect a Working with Children Check?

Yes. A Working with Children Check is different from an ordinary police check and involves specific assessment of criminal history and other relevant information. A spent conviction does not automatically mean that it cannot be considered in every circumstance.

Can I apply for a spent conviction order myself?

Yes, where you meet the statutory eligibility requirements. The Magistrates’ Court provides an application process and requires supporting documentation, including a recent National Police Check.