The Effects of a Criminal Conviction
Ideally, offenders are rehabilitated after being convicted of a crime. A desire to “go straight” and to avoid another encounter with the police motivates many offenders to pursue a law-abiding life that includes full-time employment. But as one young man discovered, a criminal record “is a fast track to rejection” for job applicants.
Peter told The New Daily about his “struggle to find any employer who would even speak to him when he got out” of jail. He isn’t alone. A quarter of all Australians have criminal records. An employment services manager told The New Daily that “as soon as they disclose their criminal past, the employer is not interested.”
People who are accused of a crime are rightly worried about the punishment they might receive. Just as important, particularly for first-time offenders, is the impact a criminal conviction might have on their lives. For many people, the fact of the conviction is a more severe punishment than the sentence that might be imposed by a court.
Fortunately, a criminal conviction might not follow an offender for a lifetime. Some convictions no longer count against an offender after ten years, assuming the offender has not been convicted of a new crime. Still, criminal defense lawyers work to avoid convictions whenever possible. Avoiding a conviction is a much better outcome than living with it for ten years.
Criminal Convictions and Employment
Only Tasmania and the Northern Territory have made it unlawful to discriminate in employment on the basis of a criminal record. No federal law in Australia and no law in NSW prohibits criminal record discrimination.
Some employers are prohibited from hiring employees who have certain kinds of convictions. In NSW, for example, the Child Protection (Prohibited Employment) Act 1988 forbids individuals who were convicted of certain sex offences from accepting a wide range of child-related employment, including employment in schools, child care centers, hospitals, and a variety of other jobs that might bring the employee into contact with children.
Most employers, however, are free to hire employees who have a criminal record. Many employers nevertheless routinely perform a criminal records check and opt not to hire job applicants who have a criminal conviction. Some employers fire existing employees after learning that they have convictions, even if the employee is performing a job to the employer’s satisfaction. In most jobs, discrimination against individuals with criminal convictions is morally wrong, but individuals have no protection against it.
While the Australian Human Rights Commission is empowered to investigate complaints of criminal record employment discrimination as a human rights violation, it can only attempt resolution of those complaints by a process of conciliation. Since criminal record discrimination is not unlawful, the Commission has no effective enforcement mechanism to provide a remedy if a job application is denied or if employment is terminated because of a criminal conviction. Unfortunately for people who have criminal records, the Australian Human Rights Commission Act 1986 is largely toothless.
Criminal Convictions and Housing
Private landlords, like employers, will often perform a criminal records check before deciding whether to rent housing to an applicant. People with criminal convictions may therefore have difficulty finding a place to live.
Housing discrimination on the basis of a criminal conviction, like employment discrimination, may be a human rights violation, but it does not violate any NSW law. Landlords are prohibited from engaging in certain kinds of discrimination, but discrimination based on a criminal conviction is not one of them. Individuals with criminal records lack any effective remedy that will prevent private landlords from discriminating against them.
Even tenants in public housing may encounter difficulties because of past convictions. A new policy in NSW will ban individuals from public housing if they have been convicted of a serious drug offence in the past five years. Since maintaining a stable lifestyle is a key to rehabilitation, depriving individuals of housing because of their past is likely to cause affected individuals to return to crime — an outcome that is at odds with the “public safety” rationale of the new policy.
Other Negative Consequences of Criminal Convictions
A criminal conviction can have a negative impact in other ways, including:
- Making it difficult to travel overseas.
- Making it difficult to obtain finance.
- Making it difficult to obtain insurance.
- Making it difficult to adopt a child.
- Affecting the opportunity to obtain professional licences.
- Affecting the opportunity to obtain a firearms licence.
- Obtaining a security licence.
- Triggering sentencing enhancements for new convictions.
- Making it more difficult to avoid conviction for a new charge.
- Harming reputation in the eyes of people who learn about the conviction.
Convictions cannot always be avoided, but a criminal defense lawyer will pursue dismissal of the charge as a first consideration. In some cases, the accused can benefit from a Section 10 dismissal, which results in the dismissal of a charge after an offender admits guilt and takes responsibility for the crime.
Certain convictions in NSW can be treated as “spent” after ten years after the date of the conviction (or three years for a juvenile), provided that the offender remains crime-free during that period. A new conviction after ten years has passed does not revive a spent conviction.
A minor traffic offence will not count against the offender during the ten-year waiting period unless the past conviction was for a traffic offence. A few serious traffic offences do count, including culpable driving and dangerous driving causing grievous bodily harm.
There are two circumstances that prevent a conviction from being spent:
- The conviction is for a specified sexual offence.
- The offender was sentenced to more than 6 months in jail.
After a conviction is spent, the offender is no longer required to disclose it and (except in limited circumstances) it will no longer show up in a criminal records check. The two primary exceptions are that convictions must still be disclosed when applying for certain sensitive occupations, and courts are able to access spent convictions when considering an offender’s criminal record before imposing a sentence for a new conviction.
While it is better to avoid a conviction entirely, an important fallback position is to avoid a sentence of more than six months. That allows the conviction to be spent after the ten-year waiting period expires. A criminal defence lawyer will examine all options and advise the accused of the best strategy for dealing with charges in order to minimise their consequences.