Are you worried about the impact a criminal record may have on you?

Get a leading criminal lawyer in Queensland who has helped numerous individuals resolve complex and difficult issues.

Are you worried about the impact a criminal record may have on you?

Get a leading criminal lawyer in Queensland who has helped numerous individuals resolve complex and difficult issues.

How this firm can protect your interests

How this firm can protect your interests

Andrew Anderson, Legal Director, is independently recommended as being one of the leading criminal defence lawyers in Queensland (Doyles Guide, 2021).
Having successfully represented litigants in the High Court of Australia, Queensland Court of Appeal, Royal Commissions, Fair Work Commission and multiple other courts dealing with trials and other hearings, Andrew Anderson understands how to succeed in complex and difficult cases.
Andrew Anderson has worked as a Principal Crown Prosecutor in Queensland and barrister in private practice at 8 Petrie Terrace Chambers in Brisbane. His depth of courtroom advocacy experience ranges from simple cases right through to complex trials and appeals.
Anderson Legal is a law firm that is dedicated to the best ideals of the legal profession. Seeking to exceed client expectations and fighting for justice is an everyday pursuit.

Learn more about criminal histories

1. Specific criminal record issues

Anybody facing a criminal charge, particularly for the first time, understandably may be concerned about the impact a criminal history may have on their life. A criminal history, and even a mere charge, can have a number of impacts that may not be immediately obvious. If you are dealing with a criminal charge or have questions about how a criminal history may impact you, it is critical to get tailored advice from an experienced criminal lawyer.

Impact of a charge on current employment

If you are charged with an offence, it can be important to get informed about the potential impact of a charge on your current employment. The impacts can range from none at all right through to summary dismissal.

It is always important to assess the relevance of alleged offending to a person’s employment. In Australia, such considerations start with the law that applies (laws differ across sectors and workplaces) as well as any express or implied term of an employment contract. In some cases, employees have mandatory reporting obligations that require them to report their charge to their employer or a regulatory agency.  

Impact of criminal record on emplyment

Whether the employment of a person is adversely affected by having a criminal history is determined on a case by case basis. The mere fact that a person as a criminal history may not entitle an employer no justification to take action as a result.

Some jurisdictions in Australia prohibit employment discrimination against people based on the fact they have a criminal history. However, denying employment opportunities to individuals with a criminal history is permissible in a range of settings. To know whether a criminal record will have an impact in a particular case, it is necessary to understand the relevant laws and any relevant terms in the employment contract.

Impact of criminal record on visas

People wishing to come to, or stay in, Australia may be affected by their criminal history. In some cases, visas may be denied or cancelled because of a criminal charge or conviction. In some cases, individuals may be deported despite years of residency.

If a person is seeking to travel to or work in Australia and they have a criminal history, or are charged or convicted of an offence while in Australia, it may preclude them from entering or remaining in Australia. The Migration Act 1958 (Cth) sets out the character test requirements for non-citizens. If a person does not pass the character test, they may be denied a visa or may have it revoked and be deported.

Impact of criminal record on travel

Australians seeking to travel overseas may be prevented from travel for two reasons. First, foreign nations may refuse to accept travellers who have a criminal history. Second, Australia refuses to allow some people to travel overseas based on their record.

The impact a criminal history can have on people seeking to travel overseas can be significant and unexpected. Some countries decline permission for travellers to enter or transit through based on relatively minor offences. This can impact important family events or work commitments. Additionally, Australia prohibits certain people from exiting the country based on their criminal history.

Impact of criminal record on divorce

In Australia, it is possible that a criminal record, particularly involving domestic violence, may impact court decisions made in the context of separation and divorce. It may affect both property division and also parenting arrangements in family law proceedings.

Under sections 79 and 90SM of the Family Law Act 1975 (Cth), domestic violence may be considered when assessing the adverse impact it may have had on the contributions of the person who was the victim of it. It can affect the assessment of contributions made during a relationship. Moreover, the existence of a criminal history may also influence court decisions in parenting disputes.

2. Common issues with charges and histories

Below are a number of common issues that people confront when dealing with issues associated with criminal histories. While the information about each issue has been created to help people seeking to learn more about common issues relating to criminal records, it cannot – and is not meant to – substitute legal consultation. To get tailored advice about a specific issue, contact Anderson Legal.

Alcohol and drug use outside of work

Some workplaces have legitimate policies which prohibit drug or alcohol use even outside of work hours where it may pose a risk to health or safety at work. In some cases, however, such policies can go too far and lead to unfair consequences.

A common issue relates to people being charged with drink driving outside of work hours and unrelated to their role. In some cases, such as when an employer has a ‘responsible drinking policy’, an employer may be justified in dismissing their employee in some cases. With respect to illicit drug use outside of work that leads to a charge or is revealed by a criminal history, it will not always justify dismissal.

Employer use of criminal histories

Many employers request a ‘National Police Check’ or ‘National Police Certificate’ as part fo their screening process for new employees. In some places in Australia, employers are not supposed to discriminate against people based on their criminal history.

The use by employers of criminal histories relating to employees or potential employees may serve a number of purposes. An employee with a criminal history may make it easier for an employer to be held vicariously liable for harm caused by that employee or may prohibit the employer from passing certain security clearances for contracts. In some cases, however, the use of a criminal history by an employer may be unfair or discriminatory.

Mandatory reporting for employees

In some industries or professions, as well as under some contracts of employment, employees face mandatory reporting obligations if they are charged or convicted of an offence. There can be consequences for failing to report such matters as required.

Individuals seeking employment or who are currently employed as a police officer, lawyer, nurse, doctor, or teacher all face mandatory reporting obligations as part of their role. Regulatory bodies, such as the Australian Health Practitioner Regulation Agency (Ahpra), may take disciplinary action against individuals who are charged or convicted of an offence, particularly in circumstances where it indicates a relevant risk.

Mandatory reporting for public servants

Under section 181 of the Public Service Act 2008 (Qld), if a public service employee in Queensland is charged with or convicted of an indictable offence, they are required to disclose that and other relevant details to the relevant chief executive.

The Public Service Act 2008 (Qld) imposes additional obligations on people engaged by the department of communities to perform certain duties. Under section 155B, such people “must immediately” disclose the change of their criminal history (ie, a conviction or charge) to the chief executive of the department of communities. There are consequences for public servants who fail to comply with their reporting obligations.

Queensland definition of criminal history

The definition of criminal history differs across different laws in Queensland. In some instances, it can simply mean when a complaint has been made against someone, whereas in others it refers only to matters where a conviction has been recorded.

The different definitions of ‘criminal history’ can cause confusion for people. It can have significant consequences, as what may be disclosable in one situation is not disclosable in another. For this reason, people asked whether they have a ‘criminal history’ or who may have to disclose a ‘criminal history’ may need to get advice about their obligations in a particular situation because the consequences of getting it wrong can be significant.

3. Other issues with criminal records

If you have an issue with a criminal record or need further information about how a criminal history may impact you or your family, contact Anderson Legal. Getting early advice about your legal options can be crucial to protecting your rights and advancing your interests, particularly with respect to criminal law issues.

Impact of criminal record on sentencing

In Queensland, the Penalties and Setnences Act 1992 (Qld) states that a person’s “character” is a consideration sentencing courts must have regard to when determining the appropriate penalty. It means a criminal history is a relevant consideration.

In assessing the character of a person, the law distinguishes between the absence of a criminal history, which must be taken into account, and the existence of a criminal record, which may be taken into account. There are numerous legal principles courts must consider when assessing the impact of a criminal record on sentencing. It can mean a criminal history may play a decisive role in a sentence, or it may have no impact at all if it is considered irrelevant.

Spent convictions in Queensland

In Queensland, the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) creates a rule whereby after a “rehabilitation period”, entries on a criminal history may become spent convictions and stop being counted as a criminal record in some contexts.

While a spent conviction may allow a person to lawfully deny having a criminal history in some contexts, it will depend on the applicable definition of “criminal history”. Certain entries on a criminal history may become a spent conviction after 10 years if the charge was dealt with on indictment. In other contexts, where a conviction was recorded summarily, the rehabilitation period is five years in Queensland.

Impact of criminal record on jury service

In Queensland, section 4(3)(m)(n) of the Jury Act 1995 (Qld) states that a person is not eligible for jury service if they have been convicted of an indictable offence or have been sentenced to imprisonment (whether in Queensland or elsewhere).

The Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) is specifically excluded with respect to the disclosure of information relevant to the Jury Act 1995 (Qld). This means that whereas a person may have a spent conviction and may otherwise deny having a criminal history in some contexts, their criminal history remains relevant for the purposes of jury service in Queensland This is particularly important for anybody called for jury service.

Meaning of “no conviction recorded”

Under the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) defines “criminal history” to mean the convictions recorded against a person. If no conviction is recorded, then, under that law, a person does not have a criminal history.

Under section 12 of the Penalties and Sentences Act 1992 (Qld), a court may exercise a discretion to record or not record a conviction. In doing so, it must have regard to all the circumstances of the case, including the nature of the offence, the persons’ character and age, as well as the impact the recording of a conviction will have on their economic or social wellbeing. It is a particularly important issue for young people and first-time offenders.

Impact of criminal record on children

Under the Youth Justice Act 1992 (Qld), a conviction cannot be recorded in combination with certain sentencing orders. Before a conviction can be recorded against a child, a number of factors must considered by the court.

The recording of a conviction against a child may harm their curent or future employment and rehabilitation prospects. Given the importance placed on rehabilitation in the Youth Justice Act 1992 (Qld), courts often take a cautious approach when considering recording a conviction against a child. If a conviction is recorded against a child, the offence they committed as a child may follow them into adulthood.

Do you need personalised legal advice or representation about an issue involving criminal histories?

If you are facing a criminal charge or related issue, obtaining early and authoritative advice may be essential to protecting your rights and legal interests. Andrew Anderson is independently listed as one of the leading criminal lawyers in Queensland and has significant experience in advising individuals on the impact a criminal charge may have on them.

If you need to contact Anderson Legal, you can call the firm on (07) 3505 7070. Alternatively, you can complete our form and we will try to contact you.

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