Disclosure of Criminal Record Information

Information about a person's criminal history may be requested and used for a variety of purposes. Most obviously it is relied upon by courts to determine an appropriate punishment when sentencing someone for a subsequent offence. However, criminal history information may also be requested and taken into account by public authorities when determining a person's eligibility or suitability to be appointed to certain public positions, to obtain a license or visa, to work in certain government regulated industries or to be given a security clearance. Increasingly prospective employers, both public and private, are also requesting and relying on criminal history information to help determine a person's eligibility or suitability to hold a position of employment in their organisation or business.

The Law Council acknowledges the need to have mechanisms in place to vet people for positions of trust and authority, or positions which involve responsibility for the care of vulnerable people, such as children. The Law Council also acknowledges that information about a person's criminal history may be relevant to this process.

However, the Law Council is concerned that without appropriate regulation, the disclosure and use of criminal history information may result in people being punished twice for their offending behavior and hinder their prospects of rehabilitation.

In particular, the Law Council is concerned that reliance on information about:

  • unproven, pending charges;
  • convictions which have been quashed or pardoned;
  • convictions which are old or ‘spent'; or
  • findings of guilt where the court has elected not to record a conviction

may result in undue discrimination against a person in the employment market and community more generally.

Lawyers around the country have noted with concern a number of cases where the disclosure and use of criminal record information has had a significant adverse impact on their client's life, which is either inconsistent with their client's right to be treated as innocent until proven guilty or is disproportionately punitive in view of the circumstances of the offence and/or the period which has elapsed since the commission of the offence. For example:

  • A young person, for example an 17 year old, who has engaged in consensual activity with another young person under the age of 16, or who has texted and received certain pornographic images of themselves or their friends on their mobile phone, might find themselves with a criminal conviction for a child sex offence. This could see them included on a child sex offender register and subject to onerous reporting obligations and ongoing police monitoring and may limit their employment opportunities in the future, regardless of any sentence they receive.
  • A person might find it difficult to complete work-placement components of certain study courses, such as nursing or childcare, if they have any type of criminal record, even if the record relates to criminal behavior that occurred a long time ago or was of a relatively minor nature or did not result in a conviction being recorded.
  • A person may find it difficult to secure an apprenticeship or other job because criminal charges against them, which are contested and as yet unproven, are disclosed on their criminal history certificate and make take months or even years to be resolved in court. A person with a criminal conviction may be prevented from serving on the board of a community organisation, regardless of the age of the conviction or the person's conduct in the intervening years.

Each Australian jurisdiction has a different way of dealing with criminal record information and for determining when a conviction is spent and therefore does not need to be disclosed. This means that the place the criminal offence took place can have a big impact on the person's future prospects of rehabilitation. These different laws also give rise to confusion about what criminal record information a person is required to disclose, for example on employment or visa applications.

As part of its efforts to address these concerns, the Law Council has made representations to the Commonwealth Government and the Standing Committee of Attorney's General. For example, the Law Council has made a submission supporting a uniform approach to spent conviction laws across Australia. The Law Council has also developed a set of policy principles on the circumstances in which a person should be included on a child sex offender register and on how information from those should be handled.

These documents, along with other relevant materials, can be found on this webpage.

The Law Council encourages members of the profession, through their relevant law societies or bar association, to use the materials on this page to raise these concerns within their State or Territory.

Materials

Years: 2011 , 2010 , 2009

2011

2010

2009