Exemptions for disclosing a spent conviction

Law enforcement agencies have a broad exemption to collect, use and disclose spent conviction information so they can perform their functions. Law enforcement agencies can:

• receive spent conviction information from police or another law enforcement agency
• disclose spent conviction information to each other
• disclose spent conviction information to courts and tribunals
• use spent conviction information to investigate and impose penalties or perform other law enforcement functions.

In addition, they can receive all your criminal history information, including pending charges and ongoing police investigations if they need to.

Law enforcement agencies can also disclose your spent conviction information to you if you request it.

The list of law enforcement agencies includes:

• Victoria Police and police forces in other states, territories
• The Australian Federal Police
• The Sheriff
• Independent Broad-based Anti-Corruption Commission
• Agencies with Corrections functions, such as the Commissioner of Corrections, Adult and Youth Parole Boards
• Director of Fines Victoria
• Government departments that play a role in regulating parts of the justice system, specifically the Secretary to Department of Justice and Community Safety and the Secretary to the Department of Transport (which operates VicRoads)
• Australian Crime Commission
• Chief Examiner and Examiners appointed under the Major Crime (Investigative Powers) Act 2004 (External link)
• Victorian Inspectorate
• Post Sentence Authority
• VicRoads – VicRoads also has separate broad exemptions to release records with spent convictions information in certain circumstances under the Road Safety Act 1986 (External link).
  For more information about VicRoads’ exemptions see Driving and police checks.

Other agencies with law enforcement functions will also meet this definition. This includes agencies that:

• prevent, detect, investigate, prosecute or punish criminal offences or breaches of laws that impose a penalty
• manage property that has been seized under laws relating to the proceeds of crime, or
• execute or implement an order or decision made by a court or tribunal.

Example 

Irene is a suspect in an investigation being run by the Australian Federal Police (AFP). She has a conviction for theft in Victoria from many years ago, but it is spent. The AFP request Irene’s full criminal history from Victoria Police. As both Victoria Police and the AFP are law enforcement agencies, Victoria Police are able to disclose Irene’s spent conviction to the AFP.

Courts and tribunals have a broad exemption to collect, use or disclose your criminal history information, including spent conviction information. Similar to law enforcement agencies, a court or tribunal can:

• receive spent conviction information from police, or another law enforcement agency
• disclose spent conviction information to another court or tribunal
• disclose spent conviction information to a law enforcement agency
• disclose spent conviction information for research, statistical analysis or modelling
• provide access to court records that contain spent conviction information
• use spent conviction information to investigate and impose penalties or perform other law enforcement functions
• collect or disclose spent conviction information in legal proceedings and for publishing their decisions
• disclose spent conviction information as part of the disclosure of a criminal record for legal proceedings and for publishing their decisions.

Examples 

If your conviction is spent this does not prevent a police prosecutor from telling a Magistrate about the conviction. The court can use your prior convictions, including a spent conviction, when deciding what penalty to give you. 

If a journalist applies to the Supreme Court to get copies of orders made by the court for your criminal offences, the court can release the orders even if they relate to a spent conviction. However, if the journalist wants to publish information about your spent conviction in the newspaper, and it includes identifiable information, they may be committing an offence and have to pay a penalty if they knew or ought to know the conviction was spent. 

Other agencies may have specific exemptions so they can receive your spent conviction information from police or another law enforcement agency in certain circumstances.

This includes:

• the Secretary to Department of Health for assessment of a person’s suitability for admission to a residential treatment facility and preparation of a plan of available services
• if you are on a custodial supervision order or a non-custodial supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (External link), the Secretary to Department of Health or Secretary to Department of Families Fairness and Housing can receive your spent conviction so they can report to the court on how the order and your treatment are going
• immigration decisions made by the Secretary to the Department of Home Affairs of the Commonwealth
• the Juries Commissioner when determining a person’s qualification for jury service.

Several agencies have an exemption to receive spent conviction information from police or another law enforcement agency in order to make an assessment to protect the safety and wellbeing of children.

Examples include:

• Child Protection, or Aboriginal agencies in the Aboriginal Children in Aboriginal Care program, when making an assessment about providing care to a child (including for kinship care)
• Information sharing entities under the Child Information Sharing Scheme
• Secretary to the Department of Education and Training for approval of providers and services in early childcare in Victoria, such as a kindergarten, long day-care or occasional care
• Adoption Services when approving a person to adopt a child
• Commissioner for Children and Young People as part of the Reportable Conduct Scheme including responding to allegations of child abuse
• regulating teachers by the Victorian Institute of Teaching.

Example

Roberta wants to be a kinship carer for her niece. She needs a Working with Children Check and also needs to be assessed by Child Protection. Roberta has a number of past convictions which are spent, but they will be released on her police check that is conducted in each case. The decision-maker conducting each of those assessments can take into account Roberta’s spent convictions, because those agencies each have an exemption for that specific purpose.

The Department of Government Services is responsible for processing applications for Working with Children Checks under the Worker Screening Act 2020 (External link).The laws about spent convictions do not change the Working with Children Check (WWCC) process.

Even if your conviction is spent, police can still give this information to the Department of Government Services as part of the police check for your WWCC application. The Department of Government Services and its interstate counterparts have an exemption to receive a spent conviction for this specific purpose and they can continue to see your full criminal history. This applies even if the check is needed for volunteering. However, this does not mean that you cannot get a WWCC, it only means that the Department of Government Services can consider your spent convictions when deciding whether to grant a WWCC.

For more information about the WWCC process, visit Working with Children Check (External link).

Several agencies have an exemption to receive spent conviction information as part of an accreditation or regulation of disability workers or students on a placement with people with disabilities.

If you are also required to apply for a National Disability Insurance Scheme worker screening check, your spent conviction will also be disclosed to the Department of Government Services as part of that check.

Certain accreditation or registration bodies have exemptions, but a spent conviction can only be disclosed to the agency or department that is deciding whether to register or accredit you. This exemption does not extend to your employer, so an employer will not see any spent convictions on the police check it receives for employment purposes.

Examples of this kind of exemption include:

• registration and accreditation of health professionals by the Australian Health Practitioner Regulation Agency
• bus driver accreditation and accreditation of taxi and ride-share drivers by the Commercial Passenger Vehicle Commission (note that this exemption only allows the Commission to access spent convictions, employers that hire people with accreditation cannot receive spent convictions)
• assessment of a person to provide care to a child for child protection by either the Secretary to the Department of Families Fairness and Housing, the principal officer of an Aboriginal agency in the Aboriginal Children in Aboriginal Care program, or a Community Service under the Children, Youth and Families Act 2005 (External link)
• bus operator accreditation by the Director, Transport Safety
• issuing permissions under the Marine Safety Act 2010 (External link) by the Director, Transport Safety
• registration and regulation of registered disability workers and disability students by the Disability Worker Registration Board of Victoria and by the Victorian Disability Worker Commission
• regulation of unregistered disability workers by the Victorian Disability Worker Commission and the Victorian Disability Worker Commissioner
• driving instructor authority by the Head, Transport for Victoria
• registration of marriage celebrants
• registration of Ministers of Religion
• regulating members of the teaching profession by the Victorian Institute of Teaching
• admission to, and regulation of, the Australian legal profession in Victoria
• licensing of real estate agents by the Business Licensing Authority.

These exemptions include situations where a law says that certain types of convictions automatically disqualify or make you ineligible for a licence or registration. The agency processing your application in these cases will have access to your spent convictions on a police check. If an agency has an exemption, they are authorised to ask you to disclose any spent convictions.

However, a spent conviction can only be disclosed licensing or registration body. This exemption does not extend to your employer, so an employer will not see any spent convictions on the police check it receives for employment purposes.

Examples of exemptions include:

• firearms licensing by Victoria Police
• private security licensing by Victoria Police
• Professional Boxing and Combat Sports Board
• poppy cultivation licences and poppy processing licenses by the Secretary to the Department of Jobs, Precincts and Regions
• licensing under the Narcotic Drugs Act 1967 (External link) (Cth), by the Secretary within the meaning of the Narcotic Drugs Act 1967 (External link) (Cth)
• issuing permissions by the Director, Transport Safety under the Marine Safety Act 2010 (External link)
• licensing of real estate agents by the Business Licensing Authority
• gambling and casino licences issued by the Victorian Commission for Gambling and Liquor Regulation
• liquor licensing and regulation of liquor licensees and associates by the Victorian Liquor Commission.