CRIMINAL RECORD CHECKS
Having a criminal record can have a significant influence on your future life. It may have an effect on your future employment opportunities and on your ability to visit certain countries. In this article we will discuss different consequences of having a criminal record in NSW. We will look at spent convictions and section 10 dismissals and whether you have an obligation to disclose information about your criminal record. We will start by explaining how you go about obtaining your criminal record if needed.
If you are required to produce a National Criminal History Record Check (NCHRC), and you are a NSW resident and aged 16 years or older, you can apply to the NSW Police Force for a criminal record check.
How do you apply?
To apply for a criminal records check you must do all of the following:
- Complete the relevant application form (forms are also available online)
- Hand it in at a NSW Police Station or NSW Police Registered Organisation
- Present proof of identity
- Pay the applicable fee
When might you need a NCHRC?
For the following situations:
- Paid employment
- A visa application
- Adoption procedures, and
- Specified Occupational licensing purposes
Child related employment and overseas travel or living checks have specific requirements.
If you are seeking a NCHRC for child-related employment you have to undergo a working with children check. See the section below for more information.
If you need a NCHRC whilst travelling or living overseas, you need to apply via the Australian Federal Police. See the section below for more information.
ARE YOU OBLIGATED TO DISCLOSE INFORMATION ABOUT YOUR CRIMINAL RECORD?
You might be asked by a potential employer, or your current employer, whether you have a criminal record. Usually you are obligated to answer truthfully, but your answer might depend on whether your conviction is spent, or whether you have received a section 10 dismissal for the offence.
If your conviction is spent, you usually don’t have to disclose your conviction. This does not however apply to certain kinds of employment, like child-related employment. If you are in child-related employment or are applying for a position in child-related employment you have to disclose all your convictions, even if they are spent. Some offences/convictions also never become spent.
A section 10 dismissal poses an interesting situation. Section 10 means you have been found guilty, but the conviction is not recorded. Therefore if you employer asks if you have a record, strictly speaking the correct answer is “No”, and you may not be obligated to disclose the “guilty finding”. However, many employers have now become smarter and adjusted the question to include “section 10” or “findings of guilt”. Most people will answer directly and include a “section 10” in their answer.
What is interesting is that the Criminal Records Act 1991 defines a “section 10” as a conviction that immediately becomes spent. Do you then have to disclose this to your employer if asked about previous “findings of guilt” or a “section 10”, if you don’t have to disclose spent convictions? The situation can become even more unclear when there are conditions or intervention programs attached to the “section 10”. When does the conviction become spent, immediately or after the conditions are fulfilled?
It will be interesting to see what the Court decides if this issue should ever end up in court. For now, remember that the employment relationship is a relationship of trust; honesty might still be the best policy.
HOW CAN A CRIMINAL RECORD EFFECT YOUR EMPLOYMENT?
The general rule is that an employer may not discriminate against you on the basis of a criminal record. However, if the nature of your criminal record means that you are unable to perform the “inherent requirements” of the specific job, an employer can refuse to employ you.
Often it is not easy to determine what the “inherent requirements” of a particular job are and to decide whether your particular criminal record will disqualify you for the job, or whether you pose an unacceptably high risk for a particular position.
Certain professions and occupations have licensing bodies that set out licensing and registration rules which are directly linked to special characteristics of that particular profession or occupation. These rules will illustrate the “inherent requirements” for that field and will address the relevance of a person’s criminal record to that particular profession. Examples are the health profession or the legal profession.
The NSW government has also specified certain positions where people with a criminal record for certain offences may not be employed in. Examples are judges, magistrates, justice of the peace, police officers, staff members of Corrective Services and people working with children.
In most other fields of employment, there is no, or very little, guidance for employers to determine what the inherent requirements for a particular job might be and how to decide whether a person’s criminal record disqualifies him/her for a specific position. Each case will have to be decided on its own merits.
WORKING WITH CHILDREN AND YOUR CRIMINAL RECORD
Before you can be employed to work with children you need to undergo a Working with Children Check. The check will consider the following:
- Convictions, including spent and juvenile convictions
- Apprehended violence orders (AVO’s), prohibitions and/or reporting obligations
- Charges against you where a conviction has not been recorded
- Any disciplinary information or relevant employment proceedings from professional organisations such as childcare service providers, foster carers and health practitioners
- Any allegations or police investigations involving you that could be relevant
If you have been convicted or found guilty of a listed serious offence against children, you become a “prohibited person” in relation to working with children or being employed in any child-related employment. The list of serious offences include:
- A serious sex offence
- The murder of a child
- Child-related personal violence offences
You are also prohibited from child-related employment if you are a “registrable person” whom a court has sentenced for a “registrable offence”. Registrable offences include the abovementioned offences as well as:
- Acts of indecency towards a child
- Prostitution of a child
- Other serious offences related to a child
CAN YOUR CRIMINAL RECORD AFFECT YOUR TRAVEL PLANS?
Most countries have visa and other entry requirements if you want to travel overseas. Having a criminal record may complicate your travel plans and might even prevent you from entering the country that you wish to travel to.
If you are an Australian and want to travel to the United Kingdom, Canada or the United States of America you need to know the following:
You need to apply for a visa and you will have to declare any criminal convictions, including traffic offences, against you. You will be required to provide details and documentary confirmation of any convictions and penalties. Your visa application will be assessed accordingly.
Anyone with a criminal record, including a drink-driving conviction, may be denied entry into Canada. You may however qualify for a waiver of exclusion, or you may apply for rehabilitation if you committed the crime outside of Canada. In some instances you may be deemed rehabilitated after a certain period of time has lapsed since the offence.
United States of America
Normally Australian residents do not have to apply for a visa to enter the USA. However, if you have a criminal record, you do need to apply for a visa and you will have to attend an interview to assess your eligibility for a visa. You have to provide details of the conviction and the punishment and the decision whether or not to issue you with a visa will depend on the nature and severity of the offence and your punishment.
For any overseas travel you need to consult the entry and visa requirements of the country that you intend to visit. If you have a criminal record pay special attention to stipulations relating to convictions and criminal records; you might face penalties for not disclosing your criminal record.
DO YOU NEED TO DISCLOSE SPENT CONVICTIONS?
No, you don’t have to disclose any information about a spent conviction to anyone. There is a limitation on how long information about your conviction is relevant.
When is a conviction spent?
The law determines that after completion of a crime-free period the conviction is spent. The crime-free period for adults is 10 consecutive years and for children it is 3 consecutive years.
What convictions can become spent?
All convictions can become spent, except convictions:
- For sexual offences,
- Prescribed by regulations
- Imposed against corporate bodies
- Where a prison sentence of more than 6 months was imposed
Do you have to tell your employer about a spent conviction?
There is no obligation on you to tell your employer about a spent conviction. Section 12 of the Criminal Records Act states clearly that any question relating to your criminal history is taken to refer only to any convictions that are not spent. The wording of section 12 can be interpreted as meaning that you only have to disclose convictions that are not spent, there is no obligation to disclose anything else relating to your criminal history; meaning that you don’t have to disclose information about previous arrests by the police if your employer asks if you have ever been arrested by the police.
What about traffic convictions?
The good news is that a conviction for a traffic offence is only relevant in calculating the crime-free period for a conviction of an earlier traffic offence. It is therefore disregarded in calculating the crime-free period for a conviction on a non-traffic offence.
Similarly, a conviction for a non-traffic offence is only relevant in calculating the crime-free period for an earlier non-traffic offence; any conviction and imposed imprisonment for a non-traffic offence are disregarded when calculating the crime-free period for a traffic offence conviction.
However, the following offences are relevant in calculating the crime-free period for any offence and will not be disregarded:
- Culpable driving
- Injury by furious driving
- Dangerous driving causing death
- Dangerous driving causing grievous bodily harm
CAN YOU AVOID A CRIMINAL RECORD?
Normally if you plead guilty to a criminal or traffic offence, you will be convicted, the court will impose an appropriate penalty and your conviction will be recorded. Once your conviction is recorded, you have a criminal record. In traffic matters you may also lose your license. If you are not convicted the opposite is true, no conviction, no penalty, no loss of license and no criminal record.
There is a third option. Section 10 of the Crimes (Sentencing Procedure) Act 1999 gives the court the discretion to make a finding of guilt, but to make an order to dismiss the charge. There will be no conviction and no record, despite making a finding of guilt. The court may impose certain conditions.
The court can make any of the following three sec 10 dismissals:
1. A Sec 10(1)(a) full dismissal
As soon as you leave the courtroom the matter is over, no conditions attached.
2. A Sec 10(1)(b) conditional dismissal
Your charge is dismissed, but the court will place you on a good behavior bond for a maximum of two years. The court can add any conditions to the bond and you have to abide by these conditions. Conditions may include:
- That you don’t commit any other offences
- That you appear before the court when called to do so
- That you inform the court of any change in your address
If you fail to comply with any of the bond conditions imposed by the court, you will be asked to reappear before the court, your good behavior bond will be revoked and you will be given a normal sentence.
3. A Sec 10(1)(c) conditional dismissal with an intervention program
The court can make your dismissal conditional upon you entering an intervention program that the court deems suitable for your circumstances. It could be a Traffic Offenders program or a Rehabilitation course. You will need to complete the program successfully and comply with the action plan for that specific program.
Take note: the Court does not easily agree to a section 10 dismissal. The court must consider the following issues:
- Your age, record, health, character and mental state
- It must be a trivial offence
- Any extenuating circumstances
- Any other factors that the court considers relevant
It will be a good idea to get a lawyer to assist you with a section 10 application; normally the court needs a lot of convincing to grant a section 10 dismissal.
GET LEGAL ADVICE
From the discussion above you will understand that the consequences of having a criminal record can be serious and have a major impact on your life. If you are facing a criminal charge and the possibility of a conviction and a criminal record against your name, seek legal advice as soon as possible. A good lawyer with experience in criminal law will be able to protect your rights and fight for the best possible outcome for your case.