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Answering your questions about ‘Finding a job with a criminal record – what new spent convictions laws mean for you’

Our Law Week event, held on 17 May 2021, aimed to provide jobseekers, particularly Aboriginal people who have a criminal record, with information and guidance to present their strongest case for employment to an employer.

The discussion also looked at how criminal history is taken into account in employment decisions. Several questions about the new Spent Convictions Act 2021 (Vic) were asked during the webinar. These questions highlighted the need for more accessible information to be made available in relation to the new laws, so people can make the most of them.

We are exploring ways of doing this, so please get in contact with Christa Momot from the Rethinking Criminal Record Checks team at Christa.Momot@rmit.edu.au if you would like to be kept up to date if further material becomes available.

You can view a recording of the webinar here.

You can view the slides used in the webinar here.

Event panel members:

  • Naomi Murphy is a Wakka Wakka woman; a Winda Mara Aboriginal Corporation Aboriginal Community Engagement Worker and former Woor-Dungin Aboriginal Ex-Offender Employment Project Worker. Naomi will be discussing her own lived experiences with the justice system and her advocacy work in the Aboriginal community.
  • Christa Momot, Rethinking Criminal Record Checks Project Stakeholder Engagement Co-ordinator will discuss the community partnerships and history of the criminal record discrimination project.
  • Stan Winford, CIJ Associate Director. Stan will be speaking about the new spent convictions laws.
  • Bronwyn Naylor, RMIT Professor and Georgina Heydon, RMIT Associate Professor will be speaking about research undertaken into employers’ attitudes into employing people with a criminal history.

Disclaimer
It is important to note that the following responses are general in nature and are provided for information purposes only. They are not intended to be treated as legal advice. People who need advice about their own specific circumstances in relation to the operation of the new Spent Convictions Act 2021 (Vic) should seek legal advice.

Questions and Answers

The questions below have been reproduced as they appeared in the Teams Live event.

The responses should be read in conjunction with the Spent Convictions Act 2021 (Vic). The Act can be accessed via either of these links:

https://www.legislation.vic.gov.au/as-made/acts/spent-convictions-act-2021
http://classic.austlii.edu.au/au/legis/vic/num_act/sca202113o2021268/

 

In regards those with more serious, criminal convictions? For example, if someone convicted on manslaughter in 1990, had lived an exemplary life since, why should his conviction still impact on every facet of his life, including employment?

This is a fair question. Spent convictions laws generally aim to achieve a balance between supporting people to contribute productively to the community, such as through employment, and reflecting community concerns about risk and safety.

Manslaughter is a ‘serious violent offence’ under Schedule 2 of the Serious Offenders Act 2018 (Vic). Assuming the person was an adult when they committed the offence, it would only be possible for this person to have their conviction ‘spent’ under the Spent Convictions Act 2021 (Vic) (the Act) if they applied for the conviction to be spent under section 11 of the Act, and if they had not received a prison sentence for the offence. If that was the situation they would need to carry out the steps for making an application for a spent conviction order set out in the Act.

 

My question are why some offences such as defensive homicide are not included in this scheme? Particularly when research shows these cohorts often offend lower than any other? Ps. It’s great that this scheme has been made reality in Victoria but I think this is a start rather than an end in and of itself.

Defensive homicide is a ‘serious violent offence’ under Schedule 2 of the Serious Offenders Act 2018 (Vic).

Decisions about which offences were included or excluded from the scheme were made by the Government when they drafted the Bill, and Parliament when it passed the Act. A Ministerial review of the Act is to be conducted after 12 months of the Act’s operation, and a copy of the report must be tabled in both Houses of Parliament within six months of the first anniversary of the Act. Potentially, the review process or the Parliamentary process may provide opportunities for further consideration of the nature and scope of the spent convictions scheme established by the Act.

 

Do you think that overrepresentation of Aboriginal people in criminal justice and the difficulty in finding a job with a criminal record has a negative impact on self determination for Aboriginal people and Aboriginal organisations? I was thinking of a situation where an Aboriginal person applies for a job but is not chosen due to a criminal record, and a non-Aboriginal person is chosen instead

This was one of the reasons the Criminal Record Discrimination Project argued for a legislated spent conviction scheme to be established in Victoria. Self-determination for Aboriginal people and Aboriginal organisations is supported by inclusion and active contribution of all Aboriginal people, so exclusion on the basis of a criminal record does have a negative impact. Many Aboriginal community-controlled organisations saw the absence of spent convictions legislation in Victoria as a significant barrier to self-determination, because it limited their ability to employ Aboriginal Victorians to meet the growing demand for culturally responsive services to meet the needs of the Aboriginal people, families and communities they support.

 

Do you have to apply to get a conviction spent?

The Spent Convictions Act 2021 (Vic) states that some very minor convictions are spent immediately, as soon as the court decides that the person is guilty – this is explained in section 7 of the Act. The Act also states that many other convictions are spent automatically after 10 years (if the offender was an adult when they committed the crime) or after 5 years (if they were a child when they committed the crime). This relates to convictions that have resulted in a non-prison sentence, or a prison sentence of no more than 30 months. It is possible to apply to a Court to have a more serious conviction spent, as explained in section 11 of the Act.

 

For family violence intervention order in place but it is issued against the will of the victim who initially do not want the order in place, is there any mitigating perspectives to argue for the defendant on the basis of police procedure to proceed anyway without considering the victim’s genuine will?

The intent of this question is unclear, but it may be relevant to point out that, when a person makes an application for a spent convictions order under section 11 of the Act, there are several matters that the Magistrates’ Court must consider when determining whether to make a spent convictions order. Section 19 of the Act sets out the matters the Court must consider in determining whether to make a spent convictions order which include:

  • the nature, circumstances and seriousness of the offence; and
  • the impact on any victim of the offence to which the application relates; a
  • the personal circumstances of the applicant; and
  • if an applicant is an Aboriginal or Torres Strait Islander person, any unique factors, such as (but not limited to) those relating to the incarceration of Aboriginal and Torres Strait Islander persons and impacts on Aboriginal and Torres Strait Islander persons of disclosure of a criminal record; and
  • the age and maturity of the applicant when the offence was committed; and
  • any demonstrated rehabilitation of the applicant; and
  • any risk to public safety of making a spent conviction order for the conviction; and
  • any other matter that the Court considers relevant.

Note: The reference to the unique factors of background of Aboriginal and Torres Strait Islander people acknowledges the over representation of these communities in the criminal justice system.

 

Can criminal records of patients under the CMIA be removed from checks? Even before a ten year waiting period? Technically they have not committed a crime.

Qualified findings of guilt, such as a finding of ‘not guilty by reason of mental impairment’ under the Crimes (Mental Impairment) Act 1997 (Vic) are immediately spent, that is, as soon as the court makes the order. This is explained in section 7 of the Act.

 

Regardless of this law change, media and its coverage plays a large role in still highlighting peoples past. Has there been any consideration as to spent convictions also meaning articles etc about an offence goes off line with the conviction? 

Unfortunately the Act does not stop the reporting of court decisions in the media, including on the internet.  However, section 23 of the Act does make it a criminal offence to disclose information that is known to relate to a spent conviction without permission from the person whose conviction is spent. This may mean that if the media knows something is a spent conviction and reports it, this may be prosecuted as an offence. This does not extend to people such as librarians making public information available.

It is beyond the scope of these responses to discuss privacy law, but it may be possible in certain circumstances for a person to request ‘an APP entity’ to correct their personal information under the provisions of the Privacy Act 1988 (Cth). For further information Australian privacy law, see this link: https://www.oaic.gov.au/privacy/

 

There are now many instances where the media name people who apply for Working with Children Permits who have a past indictable conviction, are reported. Once reported, that person’s name remains on Google searches virtually forever. That person’s name being on the internet in this way, causes greater stigmatisation to that person. How is this fair and what can be done about this?

See response to question above.

 

Does the ‘clock start’ when you finish your sentence or start it?

The clock starts on the day the court makes its decision (section 10 of the Act). That means that, if a prison sentence is imposed, the 5 year period, or 10 year period, runs from the beginning of the person’s sentence.

 

Someone asked the question about dishonesty offences and whether it’s reasonable that employers ask potential employees about these offences. I would be interested in how you may have answered it. (he talked about banks but it might be any business, big or small)

An employer is legally allowed to ask a potential employee about any offences, other than offences that ‘spent’ are under the Act: see section 20(1)(c) of the Act.

 

By police check does this term relate to a Federal Police check or State Police check?

The Act applies to any criminal record, whether from Victoria or any other State or Territory, or from the Federal Police: see section 3 of the Act.

 

Is there a next step in this advocacy piece about questions on visas, employment, etc which ask for disclosure if anyone has been charged as against convicted of an offence?

This is something that certainly warrants further consideration, as the story Naomi Murphy told demonstrated.

You can read more of Naomi’s story here.

 

What happens with incidents you were, arrested, charged but not convicted?

These should not appear on a criminal record. A criminal record is defined by the Act in section 3 as ‘a document produced by a law enforcement agency that sets out all convictions of the person’.

 

What is the best approach for prisoners exiting custody in seeking employment? Are there specific strategies that are found to be more successful with certain employers or certain industry sectors?

The Rethinking Criminal Record Project may answer some of these questions, following research we plan to conduct with employers about their approach to employing people with criminal history, including former prisoners. We are happy to keep people updated on the project if they get in touch with us.

It can be helpful to have a service provider, and/or a job service provider, work with potential employers to help place the person in work. Generally, prisoners leaving custody and seeking employment may be supported to find employment through service providers such as Victorian Association for the Care and Resettlement of Offenders (VACRO), Jesuit Social Services, Australian Community Support Organisation (ACSO). This link from the Corrections Victoria website outlines some of these services, and includes links to service provider websites: https://www.corrections.vic.gov.au/release/transitional-programs

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