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  • Spent Convictions in South Australia (SA)

    Some offences can be removed from a person’s criminal record, not out of the convictions losing significance, but following legislations of the Spent Convictions Act of 2009. These offences are referred to as "Spent Convictions".

    All spent convictions are ‘legally removed’ from a person’s Police Check in South Australia (SA) and will not appear even in subsequent Police Check results except the individual relapses into such offence. When an offence becomes Spent, it is unlawful for any agency/employer or anyone to hold that offence against the person.

    How can my offence become spent in SA?

    However, there are several reasons why an offence may become spent. These offences have nothing to do with the person's status but with certain conditions prescribed by the Act or in the court by a magistrate. For some offences, the individual may have to make a separate application to have their conviction Spent.

    What conditions make an offence Spent in South Australia?

    Despite how incredible and generous it will be to a recipient on having their convictions Spent, not all offences can become "spent". Only "minor" offences usually qualify for the Spent convictions scheme. There are some conditions that one must satisfy before the offence are spent, including;

    • Ten years of “qualification period” for adults (those convicted in an adult court)
    • 5 years of "qualification period" for juveniles (those convicted in a juvenile court)

    It follows that;

    • The qualification period restarts if the individual is convicted of another offence within the “qualification period”.
    • All convictions that attract more than 12 months (adults) or 2 years (juvenile) sentencing are exempted from the Spent convictions scheme.
    • The offences that may trigger a restart do not include offences where the penalty is $500 or less.
    • Where an imprisonment term follows the offence, the qualification period starts at the end of the term.
    • Once the qualification period is complete, the “Spent conviction” qualifies for the no-disclosure benefits.

    What are the benefits of the Spent convictions scheme?

    Spent convictions enjoy some privileges even after the offence is removed from the police check of the individual. They include;

    • The right to non-disclosure
    • When an offence becomes Spent, the holder of the police criminal check can refuse to disclose details of that conviction. In other words, you are not under oath to disclose the details of a spent conviction except when applying for certain prescribed roles under a relevant Act.

    • No one can reveal your spent convictions
    • Although your Spent convictions are not out of your criminal records, the police or other privy officials cannot disclose details of the offence without your consent or a court order. Asides from a court order or legislation in sensitive roles, only you can control the disclosure of your Spent offences.

    • Removes discrimination in applications/roles
    • Some organisations or employers may discriminate against individuals who have certain offences in their criminal record checks. While the State has a special agency (E.O.C) that oversees the complaints of aggrieved applicants, a spent conviction will put it out of the way for good.

    Is there a penalty for unlawful disclosure?

    The maximum penalty under the legislation for indiscriminate disclosure of Spent conviction detail is a $10,000 fine. However, a case may be made for the culprit if the owner of the conviction;

    • Agreed to the disclosure,
    • The culprit thought such disclosure was lawful.

    Which offences can become spent?

    If a conviction on an individual’s check qualifies under the Spent convictions scheme, it is automatically removed out of their crime record check. A particular example of this is where the court finds guilt but records no conviction against the individual.

    However, aside from these convictions that are spent automatically, other offences are;

    1. Convictions for prescribed sexual-related offences
    2. Convictions against prescribed public decency offence
    3. Convictions where the law has changed, the offence against such laws become spent

    Are sexually related offences eligible for the Spent conviction scheme in SA?

    While sexually related offences in Australia are "serious" criminal offences, some "technically reasonable" qualify for a spent offence. However, these offences must be under the designated/prescribed sexual-related offences as per the state legislation.

    1. Offence that involves consenting adults
    2. An offence constituted by consenting people of same-sex where it would not be an offence if they were not the same gender. Also, one of them must be 16 or 17 years of age, where the other is not younger.
    3. None of the consenting adults was in a position of authority concerning the other person
    4. An offence against the now-repealed sections 69, 70 or 71 of the criminal Law consolidation Act of 1935 (SA)
    5. Offences against common law that corresponds to any of the above
    6. Offences of attempting, conspiracy, incitement to commit any of the above

    However, if an application for a prescribed/designated related offence to be spent is refused, the person cannot make similar applications for another two (2) years.

    What is a prescribed public decency offence?

    Most of the offences considered "morally improper” or against public decency fall under this category; they are now mostly decriminalized. Please refer to the most recent South Australian legislation of further information.

    What types of offences do not qualify for the Spent convictions scheme?

    The Spent convictions scheme is not as generous towards "serious" offences or other offences that pose serious harm to the people or community.

    Some of the offences that will never be eligible to be spent are;

    • Convictions against a corporate body
    • Convictions of a class prescribed by the regulations
    • Convictions against sexually related offences; unless such offences are an "eligible offence” or prescribed offences. Eligible offences include offences where there is no imprisonment term imposed. It can be an adult-eligible offence or an eligible juvenile offence.

    What a Spent conviction does not remove

    When any of your convictions become spent, it does not remove or influence other proceedings or punitive measures imposed. A conviction that becomes spent does not affect;

    • A fine or other penalties
    • A breach of any condition imposed
    • Accumulation or imposition of demerit points
    • Any disqualifications or [reclusions imposed with the Spent convictions
    • Further punitive measures from any other process or justice agency

    Does the Spent convictions Act apply to convictions from other jurisdictions?

    The SA Spent convictions law also applies to convictions from offences outside SA. However, an eligible sexual related offence conviction outside SA cannot be Spent under the SA laws.

    Mutual principles can apply to the conviction given in a recognized jurisdiction in Australia outside the SA. It follows that offences that qualify as spent in that State/Territory will be considered for the SA spent convictions scheme.

    However, if the offence is not eligible for the Spent convictions (ceases to be spent) in that State/Territory, it will not qualify for the SA spent convictions.

    How do I know if my Spent conviction is removed?

    All spent convictions are removed and will reflect in an updated Nationally Coordinated Criminal History Check result. You can obtain an updated police check when you apply online via ANCC (Australia National Character Check).

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