Welcome to Know Your Rights, a new series from VICE Australia explaining the complicated legal stuff that makes life hard when you don't know the law
Job applications are hard enough when you’re part of the overqualified and underemployed millennial majority, but what if you have a criminal record?
While there are some jobs where a clean criminal record is relevant to you being able to do the role—e.g. not being able to teach if you have a sex offence conviction or drive trucks if you have a recent drunk driving offence—but there are a lot of jobs where a clean criminal record matters less.
Despite this, there’s a surprising amount of job applications which now request you to consent to a criminal record check. This could be for a whole lot of reasons around who an employer might consider a suitable candidate for a job. But it can also lead to people with criminal records being excluded from roles that they’re actually qualified to do.
So what exactly is a criminal record and what is a spent conviction?
A criminal record is basically a record held by police of a person’s interactions with the criminal justice system. There are no laws about what does and doesn’t constitute a criminal record. It can be anything from minor drug or driving offences to an armed robbery or even murder. It’s mainly regulated by the police of each state who maintain the database.
Spent convictions, on the other hand, are convictions applied to people after they’ve had a criminal record for a certain period of time (their duration depends on where you live) and are wiped clean to allow people with a criminal record to essentially “move on” with their lives.
Every state except Victoria has a spent convictions scheme which means that after a certain period of time an offence will no longer come up on a criminal record. And in Western Australia and the ACT, it’s unlawful to discriminate against a job applicant based on their spent convictions.
What that means for someone who’s convicted of an offence in Victoria though is that what’s on your criminal record is entirely decided by Victoria Police according to its Victoria Police Information Release Policy—and even after 10 or 15 years, you still need to ask Victoria Police to decide if something can come off your criminal record or not.
So, is it illegal for an employer to deny your application because of a criminal record?
The answer is: it depends.
Tasmania and the Northern Territory are the only states and territories in Australia where it is clearly unlawful to decide not to hire someone for a job because they have a criminal record—unless there an inherent requirement of the job a person can’t do because they have a criminal record.
However, everywhere else in Australia an employer can decide not to hire someone because they have a criminal record and it won’t be unlawful.
People not lucky enough to live in Tassie or the NT can technically contest an employer’s decision not to hire them due to a criminal record to the Australian Human Rights Commission. But even if you make this complaint, the Australian Human Rights Commission doesn’t have the power to force the employer to hire you or award you any money for this treatment.
This is kind of unfair, right?
It is. It means that even though you commit an offence, and that offence has been dealt with by the criminal justice system, it can still impact your ability to get a job in most parts of Australia. For many people, especially those who committed a crime some time ago, it can feel like a double-punishment.
Is anything being done to change this?
There are many organisations that have been lobbying for some time to change the system and make sure there are bigger limits on when employers can decide to not hire you for a criminal record. It’s a cause worth fighting for, given how hard it is for many people to find a job. However, it’s heartening to see it’s already been achieved in Tassie and the NT.
Please note: this information is only intended as a guide to the law and should not be used as a substitute for legal advice.