Receiving a criminal record in Australia is a frightening prospect which may impact many aspects of your life such as career and travel opportunities. If you are facing criminal charges or have found yourself on the wrong side of the law, you will likely be asking yourself several questions. Below, we cover some of the most common questions relating to criminal records in Australia.
What constitutes a criminal record?
A criminal record is a written record of a person’s previous criminal convictions. This includes all criminal offences where the person has pleaded guilty or has been found guilty and convicted of an offence by a magistrate.
This is different from a criminal history which lists all offences you have been to court for. A criminal history includes offences for which you were given a section 10 dismissal, found not guilty, or charges were dismissed. It also lists AVO’s and warrants.
What offences go on a criminal record?
Only offences that a person has pleaded guilty to or has been found guilty of go on their criminal record. Generally, these are more serious offences which require court attendance. Types of offences include:
- Sexual assault.
- Drug-related crimes such as possession, manufacturing and sale.
Criminal records do not list:
- Dismissed criminal charges.
- Offences that a person has been found not guilty of.
Does drink driving give you a criminal record?
In NSW, most traffic offences are recorded in a person’s driving record. However, serious traffic offences which have criminal penalties will be included in a person’s criminal record. Such offences include:
- Drink driving.
- Dangerous or negligent driving where someone is hurt.
- Driving while disqualified.
The police do have a level of discretion with some charges related to driving, such as speeding more than 45km/hr. They can either choose to have you attend court or send a notice through the mail.
Does getting a fine go on a criminal record?
No. If a person does not have to go to court, they will not get a criminal record. Therefore, fines and tickets do not go on one’s criminal record.
However, driving related fines and tickets will go on the driving record.
If you are convicted, will it always go on your criminal record?
- Section 10(1)(a) Dismissal – the court will dismiss the offence without recording a conviction on the person’s criminal record and will impose no conditions. The matter is over and the person is free to go.
- Section 10(1)(b) Conditional Release Order – this is the most common way the court addresses section 10 requests. The court will impose conditions on the person to satisfy for a period of time (up to two years) which is known as the “bond period”. These conditions usually include good behaviour, not committing offences, informing the court of changes in residential address etc. If a person’s meets these conditions, the court will dismiss the matter with no conviction or criminal record. However, if a person breaches a condition within the two years, the court will re-sentence the person, revoking the section 10 and likely convicting them. This is likely to include a conviction in the criminal record.
- Section 10(1)(c) Intervention program – the court will dismiss the offence and not enter a conviction on the person’s criminal record. However, the court will direct the person to enter into and complete an intervention or rehabilitation program. This may be a traffic offender or drug rehabilitation program. If a person breaches this program, they may be re-sentenced and a criminal record is possible.
If charges are dismissed do you have a criminal record?
No. Dismissed criminal charges do not go on a person’s criminal record. An offence will only go on a criminal record if a person has been been found guilty or has plead guilty.
How long does a criminal record last?
In NSW, under the Criminal Records Act 1991, most offences in a person’s criminal record can expire and will be classified as “spent”. For these offences to expire, certain conditions must be met. The conditions differ for adults and children.
For adults, convictions can become spent when:
- 10 years has passed since the conviction was recorded, and
- During this period, the person did not commit any other offence punishable by prison, and
- During this period, the person was not convicted of any offence punishable by prison, and was not in prison or unlawfully absconded.
For children, convictions can become spent when:
- Three years has passed since the conviction was recorded, and
- During this period, the person did not receive a control order, or
- During this period, the person did not unlawfully abscond.
Convictions which cannot become spent are:
- Convictions where a prison sentence of more than six months was imposed, such as for murder or rape.
- Sexual offences.
- Convictions against companies and other corporate bodies.
Further, even if a conviction is spent, it doesn’t mean all records of the conviction completely disappear. The conviction is still noted on the person’s criminal history and may be disclosed in some circumstances.
Can a criminal record be cleared in Australia?
A conviction can be spent, however, other than this, it cannot be cleared. Once it is spent, it is essentially cleared.
What jobs can’t you get with a criminal record in Australia?
Most jobs require Criminal History Checks or a National Police check which will show the criminal record of a person. For certain jobs (teacher, government related jobs), a police or criminal history check will be mandatory. Spent convictions will not usually appear.
In Australia, under the Australian Human Rights Commission Regulations 2019 (“Regulations”), an employer is not allowed to discriminate against individuals who have an “irrelevant” criminal record. The Regulations do not define “irrelevant”, allowing employers to consider a broad range of factors when determining if a person’s criminal record is relevant to the position’s duties and requirements. However, they cannot refuse a person’s application, or terminate their employment, based merely on the fact that the person has a criminal record.
It should be noted that the Regulations do not apply for jobs where holding certain criminal records make the employment unlawful. For example, certain criminal records will prevent people from being able to get a working with children check or being registered as a lawyer or doctor. Therefore, individuals with a criminal record will be unable to get the necessary clearance or certificates to gain employment in these areas.
Can you travel overseas with a criminal record in Australia?
If you have a criminal record and want to travel overseas, you will have to check that country’s entry conditions. If you need to get a visa, the visa conditions will usually list if you can travel with a criminal record. When applying for a visa, you will typically have to provide your criminal record and history, even if the country allows a person with a criminal record to enter the country.
There are a few countries that may not allow you to enter if you have a criminal record including Japan, U.S.A, Indonesia, Brazil, New Zealand, China, Taiwan, India and the United Kingdom.
Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law.
Contact us if you require assistance.