Criminal records come in two forms: a certificate from VicRoads describing your driving record (criminal driving record), and information kept on the LEAP (Law Enforcement Assistance Program) database. Your criminal driving record is obtained directly from VicRoads, whereas your police criminal record is obtained from the police.

     What your criminal driving record says

• Any driving offence you were found guilty of by a court
• Drink-driving or drug-driving fines
• Speeding fines that resulted in a loss of licence
• Traffic offences caught on camera
• Demerit points

     What your criminal record says
Every court in Victoria feeds into the LEAP database, so every outcome is recorded from the Magistrate’s, Children’s, County and Supreme Courts. This includes any not-guilty findings, court appearances, and court outcomes, including diversions.

If you were found not guilty in a case or you completed your diversion correctly, police are theoretically not allowed to release this information as part of your criminal record, but this doesn’t always happen, particularly in cases where there was a guilty verdict, but no conviction (see Victoria Police’s shonky information release policies article). They can, however, use this for themselves. Police can also access the databases of other states.

     Your criminal record is detailed, and includes:

• Your offence
• The court you attended and the date
• The guilty finding
• Convictions, if they exist
• Sentencing and penalties

     Using prior convictions against you
The LEAP database provides police prosecutors with information to hold against you in court, with your driving and police record available for the Court.

It doesn’t matter how long ago it was, unless you were under 18 when you were sentenced, and it was over a decade ago. Victoria doesn’t have a system like the rest of Australian states regarding clean slates, and convictions last on your criminal record for life.  

There are some exceptions to what the police can tell the Magistrate. Talk to lawyer Vanessa Ash about these exceptions.

     Access to your criminal record
With your permission, Victoria Police can show your criminal record. This might be an employer or embassy, but employers don’t get to see this unless you were convicted (except when you avoided conviction – it still unfairly shows), had a jail or suspended sentence, and were found guilty of this offence less than a decade ago. It may also vary depending on how old you were at the time.

     Why does my employer want to see my criminal record?
They want to (often unfairly) judge your character and in some cases, your suitability for the job. There are no laws to stop an employer asking you for this in Victoria, however you can refuse to give permission. It may mean your application is declined as a result. You must agree in writing.

Some jobs require a zero-charges criminal record, in particular those with convictions involving children cannot work with children or other vulnerable people.

Being denied a job based on a criminal conviction can be classified as discrimination and you may be able to fight your case using a lawyer and the Australian Humans Rights Commission.

It would also pay to have your voice heard on the issue of the lack of a clear clean slate mandate in Victoria – everyone else in Australia enjoys an end to their criminal record after three or ten years, depending on your age, offence, and repeat offending, while in Victoria, there is simply a shonky police policy in place that is at the discretion of the police to interpret how they will. Generally, your crimes are not released after ten years for adults and five years for children (if you were under 18 at the time of your conviction).

     Embassies
Other countries want to know who is entering their borders, and people with criminal records are often not welcome. You’ll need to make a special visa application where you state your case and humbly request entry for your purposes, and see what they say.

     Criminal record checks are limited to 10 or 5 years
Thankfully, while your criminal history remains on file, it can only be accessed by an employer or other interested party (with your permission) for 10 years after sentencing if you were 18 or over at the time of sentencing, or five years from the time of sentencing if you were under 18 at the time of sentencing.

     But, old offences can be released when…
So, that rule doesn’t always apply. Some criminal records over a decade old might be released under the following circumstances:

• The criminal record contains serious violent offending or sex offences, if the employer or organisation requesting it relates to children or vulnerable people.
• Offences relating to you being acquitted or found not guilty by reason of insanity or mental impairment.
• The check is for IVF, a child-screening unit or the Victorian Institute of Teaching, prison or police force employment, casino or gaming licenses, sex worker licence, bus driver licence, security guard licence, Victorian taxi driver licence, firearms licence, registration and accreditation of health professionals.
• If you had a finding of guilt, but no conviction – this is completely unfair and unjust. Write to your local politician to get this updated to reflect best practice.

Call Vanessa Ash and Associates today for help with your criminal record and discrimination.