On this page

  • Revealing spent conviction information unlawfully
  • Finding out what information is released to an agency
  • Discrimination because of a spent conviction
  • Information for employers
  • More information

Revealing spent conviction information unlawfully

If anyone reveals your spent conviction unlawfully or without your written permission, they could be committing an offence. It is also an offence to get spent conviction information by fraud or dishonesty.

When sharing spent conviction information is allowed

Agencies that have an exemption to get your spent conviction for a specific purpose, will not be committing an offence if they disclose your spent conviction:

  • in accordance with that exemption
  • to a court or tribunal for legal proceedings, or because a court or tribunal orders it
  • where it is needed to investigate or enforce a Victorian or interstate law
  • to a lawyer to get legal advice.

An agency might also be able to disclose your spent conviction to another person without it being an offence, if another law gives them the power to do so, or if they give it to a court or tribunal for legal proceedings. Find out more about exemptions for when a spent conviction can be disclosed.

It is also not an offence if:

  • the person took all reasonable steps to avoid unlawful disclosure,
  • the person could not have known the information related to a spent conviction,
  • the spent conviction information that is released does not identify the person it relates to,
  • a library or archive releases information that is normally available to the public, or
  • the spent conviction information is published as part of a court decision or judgement.

Example 

If the local newspaper wants to publish an article about crime in the local area, the journalist cannot disclose a person’s conviction if they know or should know that the conviction is spent. They would have to get the person’s written consent to avoid committing an offence. 

Penalties

If someone unlawfully discloses your spent conviction they can be fined up to 40 penalty units.

If someone gets your spent conviction information by fraud or dishonesty, they can be fined up to 20 penalty units.

The value of a penalty unit changes each year. More information on penalties is available on the Penalties and values webpage.

Finding out what information is released to an agency

If you give your permission for a police check, the police check is released through the National Police Checking Service. The police check will not have your spent conviction history on it unless the employer or agency has an exemption to receive that information.

Generally, you will not see a copy of the document that is sent to that agency. You may wish to contact the agency itself to discuss the results.

Find out more about police checks.

Separately, you also have the right to request a copy of your Victorian criminal history records held by Victoria Police under Freedom of Information. This is called a personal use check.

A personal use check will not necessarily give you the same information as what a prospective employer or other agency receives because it will only have Victorian records and will include spent convictions.

Driver history reports issued by VicRoads will show driving convictions which are spent. Your driver history report may be given to employers, prospective employers and vehicle insurers (with your written consent) or you can ask for VicRoads to give it to you.

Discrimination because of a spent conviction

If you have been treated unfairly because of a spent conviction in areas of public life, you may have experienced unlawful discrimination. This could include being: 

  • refused accommodation 
  • not accepted for a job (and the employer does not have an exemption) 
  • denied a service (e.g. banking or insurance) 
  • treated unfairly at work or at school, or 
  • prevented from joining a club. 

Employers and other agencies who might have access to spent convictions have a duty under the Equal Opportunity Act 2010 (External link) to take proactive steps to prevent unlawful discrimination from occurring. 

If you are concerned that someone has treated you unfairly, or unlawfully discriminated against you because of your spent conviction, you can contact the Victorian Equal Opportunity and Human Rights Commission (External link) or seek legal advice. 

However, if the agency that treated you unfairly has an exemption or some other legal authority, depending on the circumstances, this may not be illegal. 

Victorian Equal Opportunity and Human Rights Commission 

Victorian Human Rights and Equal Opportunity Commission (the Commission) has developed a Spent Conviction Discrimination Guideline (External link), which provides further information about rights and obligations relating to discrimination because of spent convictions. 

Contact the Commission to make an enquiry or complaint, or to find more information about your rights regarding discrimination.

If you make a complaint to the Commission, you should do so within 12 months of the unlawful discrimination occurring. 

VEOHRC contact details: 

Information for employers

 

Asking a person about their criminal history or spent conviction

An employer cannot ask a person about their spent convictions or to disclose them, unless an exemption applies. They can only ask about convictions that are not spent.

Employers and agencies must make sure that their employment forms and processes do not request information about spent convictions, unless they have an exemption.

Employers and agencies should also ensure their systems do not retain information about a person’s spent convictions that they may have previously collected, as they cannot use this information.

 

When an employee or applicant is asked about their convictions

A person is not required to tell anyone about their spent convictions, including their employer, except if there is an exemption. If an exemption applies, the employer should explain this to the person and that they can get legal advice.  

Even if the employer or agency has an exemption to receive a spent conviction on a police check, generally speaking, it is still up to the person whether they wish to tell them directly about their spent conviction.

An employer or agency that has an exemption to receive spent conviction information, should:

  • tell the person with the spent conviction about the information they received, and
  • give them the opportunity to respond to the information.
 

Taking into account a spent conviction when making a decision about someone’s employment

If an employer or agency that does not have a specific exemption and treats an employee or applicant for a job unfairly or unfavourably because of their spent conviction, it may be unlawful discrimination. 

Agencies that have an exemption to receive spent conviction information when they are employing people can use that information to determine a person’s suitability for employment. For further information see Telling someone about your spent conviction.

Certain licensing, accreditation and registration bodies also have exemptions to access and use spent conviction information. However, a spent conviction can only be disclosed to the agency or department that is deciding whether to license, 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.

Example

Rita has two convictions, both of which are spent. She applies to Victoria Police for a private security license. Victoria Police are able to see and consider Rita’s spent convictions for the purpose of assessing her application.

Rita is granted a private security license, and subsequently applies for a job as a security guard at a shopping centre. The hiring manager at the shopping centre does not have an exemption under the Spent Convictions Act 2021 (External link) so cannot ask Rita about her spent convictions and they will not appear on a police check issued to this employer.

 

Discrimination because of a spent conviction

Discriminating against a person based on a spent conviction is prohibited. This is because treating a person unfairly or less favourably because of a spent conviction – including in relation to decisions about recruitment or employment – may amount to unlawful discrimination under the Equal Opportunity Act 2010 (External link).  

If an agency has an exemption or some other lawful authority, depending on the circumstances, it may mean discriminating against a person because of their spent conviction is allowed.

 

Resolving a dispute about unlawful discrimination

If someone suspects they may have been discriminated against on the basis of spent conviction information, they may seek assistance from the Commission, and lodge a complaint.

They may also apply directly to the Victorian Civil and Administrative Tribunal (VCAT) (External link) to resolve a dispute about unlawful discrimination.

A complaint to the Commission could lead to the parties undergoing voluntary dispute resolution. This can result in outcomes such as a formal apology, financial compensation or a person being given their job back.

A complaint should be made to the Commission within 12 months of the unlawful discrimination occurring, as the Commission may decline to provide dispute resolution after this date. Convictions can only be spent once the law takes effect.

In practice, this means:

  • For convictions capable of being spent immediately, or after completion of a conviction period, discrimination that occurred on or after 1 December 2021 is prohibited (the commencement date of the Spent Convictions Act 2021 (External link)).
  • For more serious convictions that are spent following an application to the Magistrates’ Court, discrimination that occurs once the Magistrates’ Court has made a spent conviction order is prohibited.
 

Positive duty to prevent unlawful discrimination

Employers have a duty under the Equal Opportunity Act 2010 (External link) to take proactive steps to prevent unlawful discrimination from occurring. This is regardless of whether someone has made a complaint.

Depending on the size of the organisation and resources available, this may involve:

  • developing an action plan,
  • introducing staff training, and
  • updating policies and procedures. 

The Victorian Human Rights and Equal Opportunity Commission’s Spent Conviction Discrimination Guideline (External link), provides further details on how to comply with the duty to prevent unlawful discrimination.

More information

This information is a general guide only and you should seek legal advice about how the law applies to your circumstances.

For more information about making an application you can contact a lawyer through:

Learn more about

What is a spent conviction?

A spent conviction is a conviction that (unless an exemption applies):

  • will not appear on your police check,
  • you do not have to disclose to anyone,
  • no one is allowed to ask you about.