Criminal records

Spent convictions in Victoria

On 1 December 2021, a spent convictions scheme began in Victoria. Once a conviction becomes spent, it no longer forms part of your criminal record; and, in most cases, you do not have to tell anyone about it.

There are three different types of spent convictions:

• convictions that are immediately spent, for example infringement convictions
• convictions spent automatically, provided that you do not reoffend for a particular period
• convictions spent following a court order.

Visit the Department of Justice and Community Safety’s website for more information about spent convictions and for information for community members.

Convictions spent following a court order (serious convictions)

Some convictions are not spent automatically. These are called serious convictions. You may need to apply to the Magistrates’ Court for your conviction to be spent if you have a serious conviction.

A serious conviction is:

• if you were in jail or detention for more than 30 months (two and half years)
• a sexual offence
• a serious violence offence.

Please note: Victoria Legal Aid does not provide advice or assistance for spent conviction applications.

To apply for your conviction to be spent, follow the steps at Applying for a spent conviction order on the Magistrates Court's website.

If you need help applying to have your conviction spent:

• find a lawyer through the Law Instituteof Victoria’s find a lawyer service
• if you are Aboriginal and Torres Strait Islander, contact the Victorian Aboriginal Legal Service on 1800 064 865.

Driving records

Your driving record will include:

• driving offences where you were found guilty by a court
• fines for drink or drug driving
• fines for speeding where you lost your licence
• traffic camera offences
• the number of demerit points added to your licence.

You can get a copy of your driving history from VicRoads.

Criminal records held by police

Police keep records on their LEAP database of all your involvement with the criminal justice system in Victoria.

This police database records information for every court where charges for criminal offences are heard. This means your criminal record will include the results of cases in the Magistrates’, Children’s, County and Supreme courts.

Even if you were found not guilty, your appearance in court and the outcome of the court case will be recorded on this database.

If you were charged with an offence but the matter went ahead as a diversion, this will be recorded too.

Although quite detailed information is kept on the LEAP database, police will not release this information if:

• the magistrate found you not guilty
• you did diversion and followed all the conditions.

What is in a criminal record held by police?

The criminal record goes into detail. It includes:

• what the offence was
• the court you were at
• the date you went to court
• that you were found guilty
• the conviction if there was one
• the sentence including penalties.

The offences can range from summary offences to indictable offences.

Criminal records from interstate

Interstate police have similar databases of criminal histories. Victoria Police can check these records.

Prior convictions

If you are found guilty of an offence, the police prosecutor can use information from the LEAP database to tell the court about your history of offending. The magistrate will also see your VicRoads criminal driving record.

All your prior convictions will be listed for the court to see, no matter how long ago the offence happened. Your age at the time of the offence, and how long ago it happened can be taken into account by the judge or magistrate in determining how relevant it is to the current matter before the court.

The court will use these records when they are deciding what penalty to give you.

Infringement convictions

Some driving infringements (fines) are recorded in your criminal record if you were convicted for the offence. These are called infringement convictions. Infringement convictions include drink driving or drug driving and driving at excessive speed. These do not show up in the list of prior convictions that police use in court unless you are convicted of a similar driving offence.

Who else can see my criminal record?

Sometimes Victoria Police can let other people or organisations know what is in your criminal record, but only if you agree and give your permission in writing. For example, an employer or an embassy may want to know what is in your criminal record.

Police will not disclose any spent convictions unless there is an exemption. Police generally do not release information about criminal records to employers unless:

• you got a conviction.
• you got a jail sentence (or suspended sentence)
• you were found guilty of the offence less than ten years ago.

This depends on the job you are applying for and how old you were at the time of your offence.

If a conviction is spent it no longer forms part of your criminal record and police will generally not release information about it, unless there is an exemption.

What might an employer want to know?

An increasing number of employers want to do criminal records checks on potential employees before they will consider employing the person. A potential employer may want to know if you have:

• a criminal record
• any findings of guilt
• any convictions
• ever spent time in prison.

A criminal records check will only give this information if the court case has finished. The check may also show matters that the police are still investigating, or the court has not yet heard.

The employer may use information from your criminal record to assess your suitability for doing the job or representing the organisation. The employer cannot discriminate against you (treat you unfairly) on the basis of a spent conviction.

Is the employer allowed to ask me for this information?

On 1 December 2021, a spent convictions scheme began in Victoria. Once a conviction becomes spent, it no longer forms part of your criminal record. An employer cannot ask about a spent conviction (unless an exemption applies). In most cases you do not have to tell an employer about a spent conviction.

An employer will still be able to ask about convictions that are not spent. You can refuse to let the employer do the check. But this would probably mean that you do not get interviewed or considered for the job.

Once you have agreed, the employer can ask Victoria Police for criminal records information. Victoria Police will only do a criminal record check if you agree in writing and sign a consent form.

Some employers cannot employ people with certain criminal records. For example, employers that work with children or vulnerable people cannot employ people with convictions for violent or sexual offences or crimes involving children.

Is it lawful to be asked about a criminal record or spent conviction?

There are no laws in Victoria against employers who discriminate against someone because of a current criminal record. However, from 1 December 2021, an employer cannot discriminate against you (treat you unfairly or unlawfully) because of a spent conviction.

Get help if you think you may have been treated unfairly because of a spent conviction.

The Victorian Equal Opportunity and Human Rights Commission may be able to help with complaints if you feel you have been treated unfairly because of a spent conviction.

What might an embassy want to know?

You may want to travel overseas and need a visa. You will need to get this visa approved from the relevant embassy.

Before approving the visa, the embassy may want to know if you have:

• a criminal record
• any findings of guilt
• any convictions
• ever spent time in prison.

Some countries have laws that stop people with convictions or findings of guilt from entering their country.

If you are planning a trip and you have a criminal record, contact the embassy of that country before you apply for a visa.

How far back do criminal record checks go?

In Victoria a criminal record is available for:

• ten years from the time of sentencing if you were 18 years or over when you were sentenced
• five years from the time of sentencing if you were under 18 years at the time of sentencing.

Offences more than ten years old

Sometimes a criminal record, including a spent conviction that is more than ten years old, may be released if:

• the criminal record has an offence that resulted in a custodial sentence longer than 30 months
• the criminal record includes a serious offence of violence or a sex offence and the criminal records check is for a job or voluntary work with children or vulnerable people
• the criminal record includes serious offences where the result was not guilty because of insanity or mental impairment.

Visit the Department of Justice and Community Safety’s website for more information about Exemptions for when a spent conviction can be disclosed.