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  • Does a spent conviction show on a police clearance?

    The Police Clearance certificate is on the list of most requirements or applications you make in Australia today. Whether you are applying for a paid role, volunteer service, License or Probity checks, you will generally be required to submit a Police Clearance certificate as part of the requirement.

    Employers and organisations want to be sure that they hire suitable candidates for their vacant roles. One legal way to do this is to assess the candidate based on their Criminal records on the Australian Criminal Database. The employer can follow the legal procedures to decide whether the candidate is a fit for the role.

    What is a Spent Conviction?

    Under the Spent convictions scheme guidelines, certain "eligible" convictions are wiped off a person's record. Before an offence can become Spent, the offender must have satisfied a "crime-free" period and satisfied other conditions issued by the justice at the conviction/court hearing.

    The benefit of having an offence "Spent" is that it no longer appears on your criminal records or the Police Clearance certificate.

    Also, an employer cannot assess you based on a "spent" conviction unless it will significantly compromise the role or purpose you are seeking.

    Can all offences be Spent under the Scheme?

    Although the Spent convictions Scheme is a programme that helps to reduce discrimination towards people with criminal records, it does not apply to all kinds of offences. Only minor or summary offences that had lesser impacts on the victim or the community can qualify for the Spent conviction scheme.

    Each State and Territory in Australia has its own legislation for Spent Convictions. The Spent Convictions scheme for most Australian States and Territories lists the following conditions for offences that can be "Spent."

    • The offence did not incur a penalty greater than 30 months imprisonment,
    • The offence was not a sensitive one or caused serious "intentional" harm to the victim
    • The offence was not handled as an indictable offence in a District or Supreme Court.

    These guidelines preclude serious offences from being Spent. Examples of the offences that cannot be spent include;

    • Murder and related offences,
    • Rape and other sexual related offences,
    • Manslaughter offences,
    • Treason and other offences against the State/Crown
    • Armed or Aggravated Robbery offences.

    The offences that can be spent under the Scheme are minor offences or those stipulated by the Magistrate to remain Spent.

    When will an offence be Spent?

    An offence will be automatically Spent once it satisfies all the conditions set out in the Spent Convictions Scheme.

    Offences will be removed from an offender’s record when;

    1. The individual is granted a pardon for a reason other than that of a "wrongful conviction".
    2. Period of "good behaviour" or waiting period has ended without another conviction.
    3. The Magistrate grants an application for the offences to be spent.
    4. The law that initially criminalised the offence is later repealed or reviewed.

    These offences will only be Spent if it is part of the offences covered under the Spent Convictions Scheme.

    What is a Good Behaviour Period?

    The offender must maintain good civil and public behaviour; they must not get another conviction or criminal record. Only at the end of a Good Behaviour Period can an offender have their offence Spent or removed from the Police Clearance certificate.

    The Good Behaviour Period is;

    • Five years (3 for spent convictions in NSW) for convictions in a juvenile court or if convicted as a juvenile
    • Ten years for convictions in an adult court or if convicted as an adult

    At the end of the Good Behaviour period;

    • The offences will be spent immediately, or
    • The offender may apply to the Magistrate or the Australian Police to have the offences "Spent."

    What happens if the offender reoffends in a Good Behaviour Period?

    The Good Behaviour Period should run without the offender being culpable or indicted in any crime or conviction. It is one of the critical conditions if you want to apply for the Spent Convictions Scheme.

    However, if the offender commits another offence or gets another conviction during this period, it will restart automatically.

    Also, the Good Behaviour Period only commences after the offender serves their imprisonment term (if it was included as a penalty).

    What is the benefit of a Spent conviction?

    The Spent conviction scheme was introduced to reduce the discrimination that people with criminal records faced. Under the Scheme, your offences are wiped off your record and will never appear unless you re-offend.

    The most significant benefit of having your offences Spent is that it will no longer be part of your Disclosable Court Outcomes. It means such records will no longer appear on your Police Clearance certificate.

    • Right of no-disclosure

    If you have a Spent offence, you can choose to remain silent. Even if a potential employer asks you about such an offence, you do not disclose it.

    However, the court or special orders may require you to disclose the Spent convictions in a sensitive role.

    • Employers don't assess a Spent Conviction.

    It may count as discrimination for an employer to assess you based on a Spent conviction. The only time an employer can determine a person's Spent conviction is if the position is sensitive and requires a complete and deep assessment of the individual.

    What shows up in a Police Clearance Check?

    The Police Background Check includes all your releasable conviction records in the Criminal database per the jurisdiction rules. You can have a conviction or record on the database that is not releasable under the law.

    The details released on your Police Clearance Check are called the Disclosable Court Outcomes (DCO). These are the only details you will find on your Check. However, other records can be released depending on the type of background check and the purpose the use sets for it.

    The DCO on your Police Clearance certificate includes;

    • All Unspent Convictions

    All the criminal convictions given in an Australian Court are automatically part of your criminal records and will show up in a Police Clearance Check. However, if the court commits your offence for special programs, it may not appear on the criminal history check certificate, depending on the legal program.

    • Traffic offences settled in court

    If your traffic offences are settled before a Magistrate rather than by Infringement notice, it will appear on your Police Clearance records.

    • All non-conviction sentencing

    Even when the court decides against registering a conviction against the offender, it will still appear on the Police Clearance Check if they “find them guilty”.

    • Pending charges

    All pending charges of the applicant will appear on the police history check.

    Do Overseas Convictions show in a Police Clearance Certificate?

    The Police Clearance certificate only discloses records on the Australian Criminal database. Only the convictions given in/by an Australian Court will appear on a candidate’s Police Clearance Check.

    If you have an overseas conviction, it may appear on other background checks , but not the Police Clearance certificate if the Australian legal system was not involved.

    Can overseas offences become Spent?

    No, the Spent conviction scheme only applies to convictions given in an Australian Court. Yet, this does not mean that overseas convictions cannot qualify for other special programs under their respective jurisdictions.

    Even if a Spent conviction has lasted over ten years, the Australian Court or Judiciary cannot consider such offences as "Spent."

    What does not Show up in a Police Clearance certificate?

    Not only Spent convictions are excluded in an updated criminal history check certificate. All offences/convictions not given in an Australian Court will not appear on the Check; this includes;

    • Social courts,
    • Religious courts/offences,
    • Or offences against a group outside Australian laws.

    Other records that do not appear on a Police Clearance certificate includes;

    • Diversionary programs,
    • No findings of guilt,
    • Police cautions,
    • Infringement notice,
    • Restriction/court orders,
    • Convictions given by parties other than an Australian court,
    • Overseas convictions,
    • Spent Convictions.

    Is a No Disclosable Court Outcome (NDCO) the same as a Spent Conviction?

    The NDCO means the convictions or records on your Police Clearance Certificate that cannot be disclosed. Spent convictions will show up as an ‘NDCO’ since they do not get disclosed.

    Also, if your police check returns as NDCO, it means there are no releasable court convictions about you in the Australian Criminal Database.

    How long does a Spent Conviction last?.

    There is no limit to the Spent convictions scheme. If your offences are spent, they will no longer appear on your Police Clearance certificate for life. These records cannot be used to evaluate your performance or ability unless there is a special order.

    Can a Spent Conviction still affect me?

    Although Spent offences no longer appear in a Police Clearance certificate, they can still affect the candidate in some special circumstances.

    For example, a Spent conviction can be used to testify a person during a court proceeding. The Magistrate may admit the Spent records of a person as precedence.

    Also, when employing for specific roles, a government screening unit (e.g. a working with children check screening unit) may assess the candidate's Spent records. The legislation may allow an authorised party to evaluate a person's spent records if it will be detrimental to the role.

    How can I obtain a national police clearance?

    Individuals

    If you are an individual, you can obtain a national criminal record check certificate online via Australian National Character Check’s police check application form. The results are dispatched via email.

    Business and Enterprise Customers

    Business and Enterprise customers are able to sign up to ANCC’s business portal where they can order, manage, track and view candidates’ criminal history check results on their business portal. Organisations will undergo a process for approval prior to being granted access to ANCC’s business portal.

    ANCC sends an invite to the applicant to complete their criminal record check online and handles the application and informed consent form. Contact ANCC’s business and enterprise partnerships team today to enquire about setting up a business portal for your organisation.

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