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No Conviction in Victoria
Victoria does not have its own spent convictions scheme. Instead, the Commonwealth spent convictions scheme applies to Victorian criminal offences, but only those which have a “federal aspect”. The scheme is contained in the Crimes Act 1914 . Therefore, if you commit a criminal offence in Victoria and a conviction is recorded for the offence, you will generally not have a statutory right to not disclose that offence. The conviction will be recorded as part of your criminal record. The laws that determine when a conviction may be recorded for a criminal offence are contained in the Sentencing Act 1991. However, the Victoria Police do have an information release policy which operates similarly to a spent convictions scheme.
Sentencing without conviction
Under section 8 of the Sentencing Act 1991 (Vic), a sentencing judge may, depending on the nature of the offence committed and the other penalties imposed, choose to record a conviction for the offence, or to sentence you without recording a conviction. However, if the judge decides not to record a conviction for the offence, this will not prevent the judge from making any other order which he or she is able to do under the Act. This might include, for example, a drug treatment order which will facilitate the rehabilitation of the offender.
If the charges against you are dismissed, a conviction will not be recorded. In deciding whether to record a conviction, the sentencing judge will consider the circumstance, including the nature of the offence committed, your history and character, and what impact a recorded conviction would have on your employment prospects and personal well-being. If you are represented by a lawyer at the hearing for the offence, they will make submissions to try and stop a conviction being recorded.
Your criminal record
Under the Criminal Procedure Act 2009, your criminal record will include details of previous findings of guilt and previous convictions. Unfortunately, this means that even if a conviction is not recorded for an offence, the finding of guilt will still be on your criminal record. You can look up your criminal record by lodging a form with the Victoria Police and paying a fee. The form can be found on the Victoria Police website. Your criminal history can usually only be disclosed with your consent, but this causes major practical issues if an employer or volunteer organiser asks for your permission to do a criminal records check before employing you.
Information Release Policy
Because Victoria does not have its own spent convictions scheme, the Victoria Police have adopted an informal practice of only disclosing certain information about your criminal history. For example, if you are an adult and you were last found guilty of an offence more than 10 years ago, the Victoria Police will not release details of any previous offences. If you were last convicted of an offence as a child, the period is 5 years. There are certain exceptions to these rules, and these rules do not give you a statutory right of non-disclosure in the same way a spent convictions scheme does. The exceptions include if a record is sought by the Victorian Institute of Teaching, in relation to acquiring a firearm licence, or if you committed a sexual or other serious offence and you are seeking to be employed working with children or to do volunteer work. You can find more information on this practice in the Information Release Policy located here.
Commonwealth spent convictions scheme
The Commonwealth has had a spent convictions scheme since 1990. Under the Crimes Act 1914 (Cth), criminal offences under Victorian law which have a “federal aspect” become spent automatically after 10 years for an adult and 5 years for a minor. However, this rule only applies to convictions where you were not sentenced to imprisonment for more than 30 months. The effect of the conviction being spent is you have a right not to disclose it to an Australian Commonwealth authority or a State authority, including such an authority in a foreign country. Exceptions to this general rule include if you work with or are seeking to work with children, and a body is required or permitted to collect that information under a law. Furthermore, if you are convicted of a further offence during the “waiting period” mentioned above, the “waiting period” may restart from the time you were convicted of the further offence.