ByLawyers News and Updates

Spent convictions – VIC

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The Spent Convictions Act 2021 (Vic), along with the Spent Convictions Regulations 2021 (Vic), establishes a legislative scheme for criminal convictions to lapse after a set period automatically.

The commencement of this legislation on 1 December 2021, brought Victoria into line with the other states which already have such a scheme.

Employees and job candidates have rights under the Act, relating to an employer’s access to their criminal records. When particular criminal convictions lapse they may not be used as a basis for making decisions about a person’s employment. This generally applies to less serious offences.

Convictions which have lapsed under the legislation will not appear on a police record check unless the check is for certain types of employment, such as working with children. Specific provisions under some legislation, for example an application for a firearms licence, will still require full criminal histories to be disclosed.

Convictions for offences which are not deemed serious are eligible to be spent automatically after a 10-year crime-free period, for offences committed as an adult. The period is 5 years for offences committed as a minor.

The Spent convictions commentary has been updated in the By Lawyers Employment Law and Magistrates’ Court – Criminal (Vic) guides.

Access to criminal case information – WA

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There is now a greater public right of access to criminal case information in the WA Magistrates Court. Practitioners acting for accused persons in the WA Magistrates Court should be aware – and, where appropriate, advise their clients – that an amendment to the Magistrates Court (General) Rules 2005 (new rule 40) now allows any person to request from the court the following information relating to a particular case:

  1. the charge;
  2. any conviction or order made in respect of the charge; and
  3. any penalty imposed on the accused in relation to the charge.

However, this rule is expressly subject to the non-publication provisions of s 171 of the Criminal Procedure Act 2004. In appropriate circumstances, consideration should be given to seeking a non-publication order under s 171(4) to avoid the effect of this rule.

Also, this rule does not allow anyone to generally access the accused’s criminal history other than the outcome of the specific case.

The commentary in the By Lawyers Criminal Magistrates Court (WA) guide has been updated accordingly.

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