National police checks and spent convictions

A spent conviction will not show up on a police check for employment, except where an employer or agency has a specific legislative exemption. Most employers do not have an exemption and so will only gain access to convictions that are not spent. 

Only the following organisations have an exemption to receive spent conviction information on a police check when they are employing people:

• Commissioner for Corrections
• Court Services Victoria
• Independent Broad-based Anti-Corruption Commission
• Office of the Victorian Information Commissioner
• Secretary to the Department of Justice and Community Safety (when appointing Honorary Justice volunteers like Justices of the Peace and Bail Justices, or when appointing Magistrates, Judges, Tribunal members and other Judicial Officers)
• Victoria Police.

If your employer is not on this list and has been given information about your spent conviction, it may be an offence and the person who disclosed the information could be liable for a penalty.

There are also exemptions for certain types of accreditation, or for registration to work in particular industries, but a spent conviction can only be disclosed to the agency or department that is deciding whether to register or accredit the person. This exemption does not extend to a person’s employer, so an employer will not see any spent convictions on the police check it receives for employment purposes.

If you apply for a licence or registration, and the agency processing your application has an exemption and can access your spent conviction, it may be lawful for the agency to use it when making a decision.

If you are also required to have a driver history check as part of your licence application, your driver history report will contain spent driving convictions. Employers, prospective employers or a vehicle insurer can see spent convictions on a driver history report issued by VicRoads. Driving convictions which are spent show up on a driver history report because VicRoads has an exemption to disclose spent convictions in these reports in certain circumstances. Your employer or prospective employer may request your driver history report, which VicRoads will issue with your consent.

Full criminal histories are also disclosed to police, courts and other law enforcement agencies. 

To find out more about relevant exemptions, visit exemptions for when a spent conviction can be disclosed.

If there are no relevant exemptions, you are protected from being treated badly or unfairly because of your spent conviction. You can learn more about protections against spent conviction discrimination on the Victorian Equal Opportunity and Human Rights Commission website. (External link)

Even if a spent conviction can be disclosed and considered due to an exemption or because it cannot be spent, this does not mean disqualification from employment or other opportunities. 

When an organisation receives spent conviction information, they can consider it alongside other factors such as:

• the scope of your criminal history
• nature of the offence and the relationship of the offence to the particular position/profession
• period of time since the offence
• whether the offence was committed as an adult or a young person
• severity of penalty and whether the court recorded a conviction
• successful completion of a conditional order such as bond or probation
• character displayed since the offence was committed, e.g. steady employment record and favourable reports by past employers
• mitigating or extenuating circumstances, for example, provocation or effect of alcohol
• whether the offence has been decriminalised or later removed from legislation.

Examples

Peter is 56 and appeared before the County Court of Victoria for armed robbery committed when he was 22 and was sentenced to 6 years imprisonment.

As his sentence was longer than 5 years, Peter is not eligible to apply to have his conviction spent. National Police Checks issued in Australia will disclose that conviction – including for general employment.

Peter has worked in construction his whole life and would like to apply for a Project Manager position at a different construction company which is requesting a National Police Check.

Peter has never had to provide a National Police Check and is unsure if the new employer will automatically dismiss his application because of his criminal record.

As Peter is well qualified for the job and has remained crime-free, Peter should consider applying for the job or discussing his National Police Check with his potential employer.

​​​​​​Samantha is 35 and was charged with possession of 500g of cannabis when she was 23 and was sentenced to a Community Corrections Order with conviction. She has not reoffended since this time. Since the Spent Convictions Act 2021 (External link) commenced, a National Police Check will no longer disclose that offence for the purpose of general employment as ten years have passed and the conviction is automatically spent.

Samantha would like to apply for a job as a personal trainer at the local leisure centre and requires a Working with Children Check (WWCC). Samantha is informed that WWCCs are exempt from the Spent Convictions Act 2021 (External link) and is unsure if she should apply despite being well qualified and being crime-free since the offence.

A driver history report issued by VicRoads is different to a police check. Your driver history report has information about your driving and traffic offences, including information about:

• traffic camera offences
• infringements (fines) for drink-driving or drug-driving
• infringements (fines) for speeding
• driving offences where you were found guilty by a court
• offences that attract demerit points.

Spent convictions are displayed on all driver history reports because VicRoads has an exemption. This means that spent convictions appear on driver history reports requested by you and third parties such as a prospective employer or a vehicle insurer (which are only provided with your written consent). 

You can find out more information about driver history reports, including how to order one and to view a sample, on the VicRoads website (External link). 

Some driving-related offences are capable of being spent, such as drink or drug-driving offences, or where a court has made a finding of guilt.

If your driving-related conviction is spent, it will not be disclosed on a police check unless an exemption applies. 

However, any fines, driver licence or learner permit sanctions and associated relicensing conditions resulting from a driving offence remain unaffected. 

Not all driving-related offences are disclosed on a police check. Many offences do not meet the definition of a conviction and will not show up on a police check.

How convictions for these offences are spent depends on the sentence or penalty that you received:

• If you received an infringement notice, more commonly known as an on-the-spot fine, the matter will be immediately spent.
• If the court made a ‘without conviction’ finding, subject to the successful completion of any conditions imposed (eg. a period of good behaviour), the matter will be immediately spent.
• Otherwise, the conviction will be eligible to be spent once you have completed the relevant conviction period.

These convictions appear on your driver history report issued by VicRoads and will be used to apply any future penalties, sanctions and relicensing conditions if you commit a further drink-driving, drug-driving or excessive speed offence.

Penalties or sanctions that VicRoads apply to your licence because of a driving-related conviction are not affected if that conviction is spent. 

This means that VicRoads apply demerit points, licence sanctions and any relicensing conditions resulting from drink-driving, drug-driving and excessive speed convictions, including where they result from infringement notices.

Examples of relicensing conditions include: 

• installation of an alcohol interlock 
• completion of a behaviour change program 
• completion of a safe driving program. 

Malcolm was caught driving 50km/hr over the speed limit in an 80km/hr zone and his license is automatically suspended for 3 months as a result of being issued with an excessive speeding infringement notice. The resulting conviction for excessive speeding is recorded in his criminal history after 28 days but it is immediately spent. 

Malcolm has no other convictions and 2 years later when he applies for a job with the local supermarket, his police check comes up clear. However, when his boss asks Malcom to do deliveries and asks for his driver history report, the conviction for excessive speeding (including the demerit points and license suspension) will show up on the driver history report produced by VicRoads. 

Elaine was 18 when she was caught drink-driving and issued with a drink-driving infringement notice. The resulting conviction for drink-driving is recorded in her criminal history but it is immediately spent. Elaine has no other convictions and when she is 20 and applies for a job at a post office, her police check comes up clear. However, this offence will come up on a driver history report from VicRoads.

Five years later Elaine receives another drink-driving infringement notice. This is also immediately spent and neither of her offences will appear on her police check. However, as a result of this offence and due to her previous drink-driving offence, Elaine will receive a higher fine, a longer period of licence disqualification and will be required to complete an intensive behaviour change program before she can get her licence back. Her new licence will also have a longer alcohol interlock period because of her second drink-driving offence.