A Guide to Criminal Records in Victoria

February 20th, 2015

A Guide to Criminal Records in VIctoria

With an increasing nationwide focus on safety and security, together with the tightening of various industry compliance requirements, many people now undergo mandatory criminal record checks – whether as part of their employment contracts, or application procedures for overseas visas. It is, therefore, essential to know what it means to have a criminal record: what types of information are covered, who has access to this information, and what the repercussions are for having a criminal record. The purpose of this guideline is to provide information on the relevant criminal record policies in Victoria and to dispel common misconceptions so that individuals undergoing police checks can be informed and prepared for the process.

What information does the police have about your criminal record?

The Victorian Police saves all criminal records in a database called the Law Enforcement Assistance Program (LEAP). The database contains information about any charges that are heard against you in any court, including Supreme Courts, Magistrates’ Court, Children’s Courts, and Family Courts. On the event that an offence has been proven in Victoria, the following details are entered on the database:

  • Description of the offence (for example, assault);
  • Which court found the offence proven;
  • Date on which the offence was found to be proven (the sentencing date);
  • Sentence outcome (conviction and/or description of the penalty such as fines, good behaviour bond and its length, the term of imprisonment etc).

Victoria Police also has access to similar criminal record databases maintained by interstate police departments, which means that if you have a criminal history in other jurisdictions, Victoria Police would be able to access such records also. These records are used for law enforcement & Policing matters.

 

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Notably, the police keep comprehensive records of your charges, court appearances and outcomes, even if you were found not guilty, or your charges were ‘diverted’. It is, however, important to remember that they will only release the information to individuals or organisations outside their own Victoria Police force when that is allowed by their strict information release guidelines.

 Who has access?

Everyone has the natural right to access their own individual criminal record.

Law enforcement agencies, including the police prosecutor, have the ability to access a person’s criminal record without their consent if it is for the purposes of administration of justice.

The police are authorised to conduct criminal history checks, and release criminal records, on individuals for the purposes of their paid or voluntary employment, work registration/licensing, or as required by foreign embassies. They can only release information on your criminal record with your written consent unless it is for law enforcement or the administration of justice.

The process of obtaining a Victoria police certificate is fairly simple: you have to pay a fee and complete the ‘Consent to Check and Release National Police Record’ form in person at a Police station or online through the Victorian Police website. You are also able to obtain your Criminal History Check through an online provider who is accredited by the Australian Criminal Intelligence Commission, such as Police Check Express if it is required for employment purposes.

individual police check

 

Type of information not released on your National Police Record Check

In accordance with the Victoria Police Information Release Policy, the police will not release information about your involvement with the criminal justice system in the following circumstances:

  • Charges not proven or withdrawn

If the criminal charges against you have been withdrawn or could not be proved, then this information will not be included in your criminal record. For instance,  if the Crown or Police withdraw the charges, or the courts find you not guilty, then information about these charges are not revealed to external stakeholders. These types of unproven offences will be noted on the internal system of the Victorian Police department, but will not be formally included in your criminal record that potential employers may request access to.

  • Convictions more than ten years old for adults and five for juveniles

Criminal record in Victoria

If you are an adult, the police can release information about any convictions that you incurred within the last ten years, counted from the time of sentencing. For juveniles, convictions remain on the record for five years from the time of sentencing. This means that subject to certain exceptions, your criminal history check will not reveal convictions incurred outside this timeframe. These court outcomes will generally be “Spent” – also known as “Quashed” only if you have had a clean record for the last ten years. If you have committed a recent offence and the offence is four years old for example, then it is more than likely that your offence from fifteen years ago could possibly be released as well. So generally speaking, you need a clean record of ten years, for the court outcomes to be spent (Not released by the police checking services).

However, Victoria Police may release this information if you were convicted of a serious offence (such as violence or sex offence), and either served a jail sentence of more than 30 months or were acquitted on grounds of mental impairment or insanity. The police will decide whether it is necessary to release the information based on your job description and requirements. For instance, if you are applying for a clearance to work with children, aged and/ or any vulnerable persons, amongst others, your criminal history check would most likely disclose any serious prior convictions – regardless of how much time has lapsed. In this instance, the “ Release Policy” will be partially exempt from being applied, due to the nature of the job role.

It is also important for you to know that a police prosecutor can inform the court about your criminal history based on the records of the LEAP database. The magistrate is entitled to have access to your entire criminal history, including your driving record, regardless of how long ago the convictions were incurred.

  • Diverted court matters

Under section 59 of the Criminal Procedure Act, magistrates can offer first-time offenders with the opportunity to ‘divert’ their matter outside the court, if they are deemed eligible. This means that in exchange for fulfilling conditions such as counselling, community work, educational courses, etc, the offender can avoid a criminal record. While the Victoria Police have internal records of diverted charges, they are not formally included on your criminal record, which is released during the criminal history check.

  • Driving records

A Police Criminal record is distinct from a Victorian driving record. A person’s driving record is held by VicRoads, which is the organisation authorised to release certificates relating to driving offences in Victoria. However, if convicted, certain driving infringements/fines are included in your police criminal record, including convictions for driving under the influence and/or at excessive speeds.

  • Penalty infringement fine

A penalty infringement fine refers to the penalty you have to pay for breaching the law. The infringement notice should state the offence you are being fined for, the penalty which applies to the offence, along with information about how to pay or challenge the fine.

Penalty infringement fines are not generally stored in a police criminal record unless you elect to take the matter to a hearing at the Magistrate’s Court. If the offence is proven in court, then the matter is recorded in a Victorian Police criminal record. Moreover, the appropriate penalty will be at the discretion of the magistrate, which means that they can even record a conviction if you are found guilty.

However, be aware that if the penalty infringement notice was issued by another government department responsible for licensing regimes, then that department may have its own register noting the particulars of penalty infringement notices being issued.

What are the repercussions of employers knowing about your criminal record?

The goal of employers in requesting to see your criminal history is to mitigate risks for their businesses. By using your criminal record to assess your character and suitability to a given role, they can enhance workplace safety and cohesion. However, employers can only consider your criminal record in assessing eligibility when it is relevant to the core functions of your role. Employers are required under anti-discrimination laws and policies to make sure that employees are not unfairly treated or dismissed because of their criminal history.

Ultimately, criminal records should only equip employers to mitigate risks and assess the character of employees and candidates; it should not have a significant bearing on your employability unless your criminal record is directly related to your job description.

If you want to learn more about police check and potential safeguard your organisation against potential risks including discrimination lawsuits, non-compliance with privacy laws and HR mismanagement, you can download a free best practice guide here:
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Hayden Langhorn

Hayden Langhorn is the Managing Director at Intercheck Australia. He is a leading expert in pre-employment screening and is passionate in helping businesses to reduce employment risks while scaling up their businesses.