Commentary on the disclosure of criminal records by job seekers has been added to the By Lawyers Employment guide. This useful enhancement covers ‘spent’ convictions in all Australian jurisdictions.
Employees and job candidates have rights under state legislation except in Victoria, and also under federal legislation, relating to their employer or prospective employer accessing their criminal records.
Employers normally have the right to conduct criminal record checks on current and prospective employees. This generally does not include ‘lapsed’ or ‘spent’ convictions.
All states, except Victoria, have different legislative schemes for convictions that lapse, commonly known as ‘spent’ convictions. Commonwealth crimes fall under federal legislation which also covers the ACT and the Northern Territory.
These legislative schemes prescribe when certain criminal convictions lapse, after which time they may not be used as a basis for making decisions about a person’s employment. This allows offenders to put their past behind them, provided they have had the required law-abiding period.
For example, under s 85ZV of the Crimes Act 1914 (Cth), an organisation is prohibited from taking into account or disclosing to others an individual’s past criminal conviction under federal law if it is defined as having lapsed. An individual is not required to disclose such a conviction when applying for employment. A lapsed conviction is defined as an adult conviction more than ten years old, or a juvenile conviction more than five years old. The maximum penalty for the original offence cannot exceed 30 months imprisonment.
There are exceptions, such as where people are applying for jobs that involve working with children.
For further information on ‘spent’ convictions and employment applications see the By Lawyers Employment guide.