Some people put details of their activism proudly on their resumes as a demonstration of their conviction and concern. This can also allow them to explain and clarify the conviction of 'trespass', for instance, before it appears on a police records check. Others do not wish to disclose details of a criminal record for fear that it will limit their opportunities in the future. Generally, it is unlikely that a criminal conviction for a minor offence will automatically be a bar to employment. It will usually be assessed by the employer and considered according to the individual circumstances of the case. Unfortunately there are, however, cases of discrimination based on a person's criminal record. Although there is only limited protection available to people who have been treated unfairly on the basis of having a criminal record, if you think you have been treated unfairly, you may have a remedy and should seek legal advice.
The law concerning the rights of employers to enquire as to the criminal histories of prospective employees is uncertain. However, as a general rule an employee will be under a duty to respond honestly if an employer asks a specific question about a criminal history and that question and the criminal history are relevant to the employment. On the other hand, if there is no connection between the duties to be performed, the employer's question and the employee's criminal history, then an employee is entitled to refuse to answer.
If an employer does ask about your criminal history you have to decide whether to disclose it. A failure to disclose may backfire if contradictory information appears on your police check.
Note that once you are employed an employer does not have a general right to enquire as to your criminal status, unless your employment is subject to regulations or a contract requiring ongoing disclosure.
The law allows you to withhold information about old convictions except in certain circumstances. The law is different for Commonwealth and State offences.
Part VIIC of the Crimes Act1914 (Cth) provides that where a conviction for an offence has been pardoned, quashed or spent, the person is:
- Taken to have never been convicted of the offence; and
- not required to disclose the fact that they were charged with or convicted of the offence
This right of non-disclosure of spent convictions applies to the disclosure of information “to any person, for any purpose” and, therefore, will apply to requests for information made by an employer to an applicant during the recruitment process.
A person's conviction becomes “spent” if they have been granted a pardon, or they were not sentenced to imprisonment for more than 30 months and the relevant “waiting period” has expired. The waiting period is 5 years from the date of conviction if the person was treated as a juvenile in relation to the offence, or 10 years in all other cases. If a person is convicted summarily of another offence which was committed during a waiting period, the court may order that the first conviction not become spent until the waiting period for the later conviction has ended. Where the later conviction is by indictment (a serious criminal matter), the court has no discretion in relation to the treatment of the earlier conviction - it will not become spent until the waiting period for the later conviction has expired.
The right of non-disclosure does not apply in certain circumstances. These exclusions are listed in Division 6 of Part VIIC and Regulation 8(1) of the Crimes Regulations1990, and include, for example:
- Prospective employees or members or law enforcement agencies and intelligence security agencies
- Bodies involved in the care, instruction or supervision of minors, for the purpose of finding out whether a prospective employee has been convicted of a “designated offence” (namely a sexual offence or any other offence against a person who was under 18 at the time the offence was committed)
- Convictions for designated offences for the purpose of assessing the suitability of a person for certain positions with the Australian Defence Force
- Convictions for offences involving violence for prison administration positions
It is not clear in Victoria that a person does not have to disclose the fact that they were charged with or convicted of a State offence if that offence is not disclosed on a Victoria Police check. As a general rule you need not disclose such matters. If you are discriminated against because you have not disclosed a matter under these circumstances, you should seek legal advice.
Criminal record checks for jobs advertised as "public sector positions" are covered by specific recruitment guidelines. The guidelines say that checks should only be performed on the people who are to be offered jobs. Generally, checks for convictions, other than sexual convictions, will only go back 10 years, but the guidelines do not explicitly state this. Minor offences more than 10 years old may be treated as spent convictions.
The guidelines suggest that people be given an opportunity to discuss any conviction, usually with the human resources manager of the department, before a final decision about employment is made. The department should consider a number of circumstances, including the age of the conviction, your age at the time, number of convictions, the sentence imposed by the court and any extenuating circumstances. The main thing for your potential employer to consider is whether the criminal record is relevant to your employment.