Do I have to disclose where there was no conviction recorded?
Generally section 12(3) of the Penalties and Sentences Act 1992, prohibits the conviction from being entered in any records except in in the records of the court before which the offender was convicted and the persons criminal history. This general prohibition can be over-ridden if expressly provided for in either the Penalties and Sentences Act 1992 or some other act.
Examples – Professional Bodies
Occupations such as real estate agents often require a person to be a fit and proper person or a suitable person under the relevant legislation. For example section 34(1)(b) of the Property Occupations Act 2014, provides that an individual is not a suitable person to hold a licence if the individual has been convicted, in Queensland or elsewhere, within the preceding 5 years of a serious offence. Section 77 of the Act provides that a licence is immediately cancelled upon a conviction for a serious offence. If no conviction is recorded you may be eligible to obtain your licence but will need to demonstrate fitness.
Those employed in the medical field such as Doctors and Nurses will also be required to disclose convictions whether recorded or not to the their professional bodies such as the Australian Health Practitioner Regulation Agency. In some instances it will be a breach if a person fails to notify the body that they have been charged.
Section 501(3A) of the Commonwealth Migration Act 1958 permits the Minister for Immigration to cancel a visa if the minister is satisfied that the person does not pass the character test. A person will fail the charcter test if they have a substantial criminal record or a serving a custodial sentence. A substantial criminal record is defined in section 501(7) to be a sentence of 12 months or more.
It is immaterial whether the conviction is recorded or not.
A common question on insurance applications is “Do you have a recoded conviction?” Other insurers will ask “Have you been charged with a criminal offence?” You must read the wording of the insurers question closely as they will often refuse a latter claim if you have not answered appropriately. You should note that in some cases there is an ongoing obligation to notify your insurer if you have been charged of an offence.
If you need to work with children you will be required to apply for a Blue Card. People convicted of a disqualifying offence are unable to apply for a blue card, whereas those charged with a serious offence may be able to obtain a Blue Card in exceptional circumstances.
It is important that you disclose a conviction whether or not the conviction is recorded.
If you are asked by a potential employer “Have you been convicted of an offence, whether or not a conviction is recorded?” then you should urgently seek legal assistance. It may be that some legislation over-rides the provisions of section 12 of the Penalties and Sentences Act.
For legal advice specific to your matter, you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.