What appears on a criminal record check?
All Court appearances and outcomes of all criminal offences considered in court, from minor convictions to convictions for serious offences, are recorded by the Victorian Police on a database. The police database includes the results of cases in the Magistrates’, Children’s, County and Supreme courts.
Even if a person is found not guilty, the court appearance and the outcome of the case are recorded on this database. While the Police keep detailed information related to criminal matters, these records are not generally disclosable if a person is found not guilty, has completed a diversion program or once a conviction is ‘spent’. However, this last scenario has far more loopholes than the first two scenarios.
In Victoria, disclosure of your criminal record is managed by Victoria Police, and criminal records generally cannot be disclosed in a national police check for purposes outside of law enforcement and the administration of justice without your consent unless an exception applies.
Applying for a national police check
A person may be required to apply to the Victoria Police for a national police check in certain circumstances, such as for employment, volunteer work or occupational licencing and registration purposes. Interstate residents may apply for a national police check from their current state police. A person can apply for a national police check online or via post. This requires certain identity requirements (e.g. provision of a passport and driver licence) to be met and payment of a fee.
What is disclosable on a police check?
How long an offence on your record is disclosable by Victoria Police depends on whether your matter went to court, the court’s findings and the seriousness of the offence. All court appearances and outcomes of all criminal offences considered in court, from minor convictions to convictions for serious offences, are disclosable on your criminal record (except for diversion) until it becomes a spent conviction.
Successfully completing the Magistrates’ Court’s diversion program means no plea is entered, and the court discharges the accused with no finding of guilt (Criminal Procedure Act 2009 s 59). Therefore, a court outcome resulting in diversion is not disclosable on a person’s criminal record. See What is Diversion? for more information about this outcome.
In Victoria, the period of time that an offence appears on your record is subject to the Spent Convictions Act 2021. While any findings of guilt for an offence, including findings of guilt without conviction, are generally disclosable in a criminal record check, once a conviction becomes spent, it is no longer disclosable unless subject to an exception. An interstate or Commonwealth conviction that is spent under that state, territory or the Commonwealth’s spent conviction laws will similarly not be disclosable unless an exemption applies.
A person is, therefore, not required to disclose the existence of a spent conviction or any information about the spent conviction, even if requested, such as in the course of a visa application or by an employer. In Victoria, a person is protected from unlawful discrimination because of a spent conviction. If a conviction is spent, it does not appear on a criminal history check; however, the record is not erased from the police database, and it is not automatically erased from records held by other agencies.
In Victoria, a conviction may be spent immediately (such as for an infringement conviction), automatically after the conviction period, or by application to the Magistrates’ Court for more serious offences.
Automatically or immediately spent convictions
A conviction may be automatically spent after 10 years for an adult or 5 years for a child from the date of the conviction if:
- A magistrate or a judge recorded a conviction (Sentencing Act 1991 s 8); and
- The conviction was subject to less than 30 months imprisonment and was not a ‘serious conviction’ (under the Spent Convictions Act 2021).
For example, if a court made a finding of guilty ‘without conviction’, it will not show up on a police check unless an exemption applies due to the conviction being spent immediately (provided any other conditions under the sentence are complete).
Convictions spent by application
Serious convictions with a sentence of more than 30 months imprisonment may only be spent by application to the Magistrates’ Court (Spent Convictions Act 2021 s 11). A person convicted of a serious conviction may apply for a spent conviction order at the end of the conviction period if:
- The person was a child (under 18) or a young offender (under 21) at the time of sentence; or
- The person was an adult at the time and:
- no term of imprisonment was imposed for a serious violence offence or a sexual offence; or
- in any other case, a term of imprisonment was 5 years or less.
Exceptions allowing disclosure of spent convictions
In certain circumstances, Courts, Victoria Police and specific agencies are permitted to use and disclose spent conviction information for exempted agencies and purposes listed in the Spent Convictions Act 2021 (s 21, 22). Agencies and exempted purposes include:
- Upon request for the disclosure of your own criminal record.
- Law enforcement agencies, courts and tribunals are permitted to disclose a spent conviction to another law enforcement agency court or tribunal for performing law enforcement functions.
- Courts can collect, use and disclose spent conviction information during legal proceedings before the court or as part of the publication or dissemination of court decisions.
- The Commissioner under the Corrections Act 1986, is permitted to collect, use or disclose to any person spent conviction information in accordance with corrections purposes.
- Investigation or law enforcement purposes by agencies such as Victoria Police and Corrections.
- As requested by the Chief Commissioner of Police in another State or Territory.
- Courts and tribunals in the course of legal proceedings.
- Working with children checks.
- Application for specific licenses and registration, such as for a gun license.
- Occupational registration and accreditation and regulations, such as for health practitioners, teachers and lawyers.
- Immigration decision-making.
Sentences with conviction or non-conviction
In some circumstances, the court may order that an entry for a finding of guilt is made with or without the recording of a conviction (ie non-conviction). As stated above, a finding of guilt with non-conviction is ‘immediately spent’ and will not show up on a police check unless an exemption applies (provided any other conditions under the sentence are complete).
While a finding of guilt is still recorded on the police record (and disclosable subject to spent conviction legislation), a non-conviction means that the answer is ‘no’ if a person is asked whether they have been convicted of an offence, such as by an employer or for a valid Australian visa.
In determining whether a finding of guilt should be made without the recording of a conviction, the court has regard to the nature of the offence, the defendant’s criminal history and personal circumstances (Sentencing Act 1991 s8). Where sentencing results in a penalty of imprisonment, the court must enter a conviction for the offence.
A finding of guilt without the recording of a conviction must not be taken to be a conviction for any purpose (s 8(2)). However, a finding without a recorded conviction has the same effect as if one had been recorded for any subsequent proceedings for variation of the sentence or subsequent proceedings against the offender for the same offence (s 8(3)(b)). The Court appearance for a finding with non-conviction is, however, still available to the court for any future criminal proceedings.
All information related to criminal proceedings, including spent convictions and a finding of guilt with non-conviction, remains in the Victoria Police records and may be disclosable in a national police check, subject to spent conviction legislation. Individuals may be obligated to disclose information for specified purposes, such as for law enforcement purposes or in criminal proceedings.
What is diversion?
Having a criminal record can have severe implications and consequences concerning employment, income and travel. However, there are opportunities to avoid having a criminal conviction recorded in certain circumstances. A person charged with an alleged offence may be able to avoid a criminal record by participating in the Magistrates’ Court diversion program. Successful completion of a diversion program means that a person is found not guilty of the offence under section 59 of the Criminal Procedure Act 2009.
Diversion may be available to a defendant in the following circumstances:
- The offence is triable summarily;
- The defendant acknowledges responsibility and is a low-level offender;
- The prosecution (usually the police officer who issued the charges) agrees to the diversion;
- There is sufficient evidence to gain a conviction; and
- Diversion is considered an appropriate penalty by the presiding Magistrate.
In determining whether diversion is appropriate, the Magistrate considers the accused’s criminal history, the circumstances and seriousness of the offending, the impact on the victim, the victim’s views (if provided), and the defendant’s rehabilitation prospects.
If a diversion is granted, a plan including certain conditions must be completed, such as:
- apologising to any victims or paying compensation;
- undertaking counselling or education (e.g. driving or drug awareness);
- charitable donations to causes related to your offence;
- undertaking community work (e.g. a community corrections order).
Upon completing the diversion plan, charges are dismissed with no finding of guilt or criminal record. If the diversion plan is not completed, the matter is referred for another court hearing and may result in a criminal record. However, details of the court appearance are available in future criminal proceedings.
Other information generally not disclosable
The police hold detailed information related to criminal matters. However, the following information is not generally disclosable in a police check unless the receiving agency is authorised to receive the information or the information is being disclosed to a court, tribunal or law enforcement agency:
- Pending criminal charges (not yet heard in court), depending on what it is, there is discretion here.
- Information about an ongoing investigation by police.
- A finding of not guilty by reason of mental impairment.
- Infringement convictions for minor offences which have not gone to court (other than for drink or drug driving and driving with excessive speed offences).
Information pertaining to pending charges, findings of not guilty by reason of mental impairment, or ongoing investigations may be subject a disclosure exception such as in the course of a Working with Children Check or for National Disability Insurance Scheme (NDIS) worker screening.
Historical convictions reappearing on police checks
Before the commencement of the Spent Convictions Act 2021 in December 2021, the disclosure of criminal records was subject to discretion under administrative guidelines and convictions older than 10 years were generally not disclosed. However, police record checks requested since this date may show some historical convictions due to the application of the spent convictions scheme requiring certain convictions to be spent by application only.
Requesting a review of information released in a police check
If you have reason to believe information released under a police check is incorrect, an appeal can be lodged. To dispute information released in a national criminal history check, contact the accredited body or police agency with whom you submitted your police record check application.
More information about this process can be found on the Australian Criminal Intelligence Commission website.
Criminal record FAQs
The answer to this question depends on whether offences are spent and whether any matters disclosable on your record are likely to affect the core functions of your role.
Employers may request a criminal history check for prospective employees to assess their suitability for a role. However, since 1 December 2021, an employer cannot discriminate against you due to a spent conviction. Once a conviction becomes spent, it is no longer disclosable as part of your criminal record. Unless an exemption applies, an employer cannot request information about a spent conviction, and you are not required to tell an employer about a spent conviction.
An employer is permitted to ask about convictions that are not spent. While you can refuse to let the employer conduct a criminal record check, your application for the role is unlikely to proceed. If you agree, the employee can request a criminal record check from Victoria Police with your written consent.
Some employers cannot employ a person with certain criminal records, including spent convictions. For example, employers who work with children or vulnerable people require ‘working with children checks’ and can exclucannot employ people with convictions for violent or sexual offences or crimes involving children. An employer or agency with an exemption to consider spent conviction information should allow you to respond to the information.
Employers are only permitted to consider your criminal record to assess factors relevant to the core function of your role, and the law prohibits employers from discriminating against you due to a spent conviction. Therefore, unless your criminal record is directly related to your job description, having a criminal record should not significantly affect your employment prospects.
If you may have been treated unfairly because of a spent conviction, complaints can be reported to the Victorian Equal Opportunity and Human Rights Commission.
Whether a conviction for an offence is recorded and how long an offence is disclosable on your criminal record depends on whether your matter went to Court, the Court’s findings and the seriousness of the offence. Any findings of guilt for an offence, including findings of guilt without conviction, are disclosable on your criminal record. However, once a conviction is spent, it is not generally disclosable. A person is, therefore, not required to disclose the existence of a spent conviction or any information about the offence.
A conviction may be spent immediately (e.g., for an infringement conviction), automatically after the conviction period, or by application to the Magistrates’ Court for more serious offences. A conviction may be automatically spent after 10 years for an adult or 5 years for a child from the date of the conviction if it was subject to less than 30 months imprisonment and was not a ‘serious conviction’. Serious convictions with a sentence of more than 30 months imprisonment may only be spent by application to the Magistrates’ Court at the end of the conviction period (s11 Spent Convictions Act 2021).
Members of the public are not permitted to access another person’s criminal record. However, as set out above, specific agencies are permitted to access and use criminal records and spent conviction information for exempted purposes.