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  • How criminal records are cleared in Australia

    If you are convicted of an offence in Australia, and the court imposes a conviction, you will have a criminal record against your name on the criminal record database. Once you have a criminal record, it may remain so for life, except if it is legally expunged.

    Criminal records are not what anyone wants to have on their police checks or records. Not only does it reflect sourly on their employment prospects, but it is also a repulsive criterion for most employers and agencies. Depending on the type of office, It can get harder if that individual applies for a role or a license.

    Happily, there is a way (as listed in legislation) to clear your criminal record in Australia if you have one.

    How to clear your criminal records

    If you are found guilty with no conviction; the fastest way to clear this record is to satisfy the condition prescribed by the court.

    If the court prescribes; a community service, or rehabilitation check, or therapy, or fines, or any other penalties without recording a conviction, the individual must satisfy the condition. Once they meet the conditions, the court maintains its order of not recording a conviction.

    However, this only applies to cases where the court finds you guilty but chooses to not record a conviction against you. The offence becomes Spent once you satisfy the conditions.

    Criminal records cleared under the Spent Conviction Scheme

    Certain legislations exist in each State and Territory in Australia that outlaws the disclosure of some convictions once the “waiting period” elapses. These offences are known as Spent Convictions, and they will no longer show up in the person’s police check records.

    The period before an offence becomes spent may be known differently in the various States and Territories;

    • Waiting period
    • Crime-free period
    • Rehabilitation period
    • Qualification period
    • Period of Good behaviour

    Irrespective of the name, they all mean the same and account for almost the same period (depending on the legislation in each Australian state and territory).

    Under the Commonwealth Laws

    Within the commonwealth jurisdiction, a "good behaviour" period is 5 years if the conviction is by a juvenile court, or the offender was a juvenile. For convictions by an adult court, this period is 10 years.

    1. During the "good behaviour" period, the individual must not be convicted of another offence by any court. If they get another conviction, the period will restart.
    2. If an imprisonment term is imposed, the period of good behaviour will commence after the term.
    3. The conviction to be spent must not have incurred an imprisonment term of more than 30 months. All offences with an imprisonment term over 30 months are considered “serious” criminal offences and will not qualify for the Spent convictions scheme.

    While the Commonwealth legislation for clearing criminal records applies in all States and Territories in Australia, it does not override the Spent convictions scheme in the Territories. Therefore, the laws may be slightly different in the various States and Territories.

    Australian Capital Territory (ACT)

    In the ACT, individuals with minor offences that qualify under the Spent Convictions scheme can have their offences cleared if the “waiting period” elapses. This means that when applicants apply for a national criminal history check in the ACT, certain offences will not show up on their police checks when the waiting period elapses.

    The waiting periods are;

    • 5 years for convictions by a juvenile court
    • 10 years for convictions by an adult court

    It also follows that;

    • The conviction did not incur an imprisonment term over 6 months
    • The waiting period restarts if the individual gets another conviction in-between
    • The individual completes all other court orders regarding the conviction

    New South Wales (NSW)

    Clearing a conviction in the NSW follows all guidelines stipulated in the Criminal Records Act of 1991. It helps to remove discrimination against offenders who are convicted of minor offences which were commited a long time ago. After the below time period elapses, these selected “minor offences” will no longer appear on a national police check in NSW.

    The waiting periods for convictions in NSW are;

    • 3 consecutive years of good behaviour for juveniles/children
    • 10 years of good behaviour for convictions from an adult court
    • They should not be convicted of another offence during this period

    South Australia (SA)

    The Spent convictions Act of 2009 for SA prescribes some guides on how to clear criminal records.

    Once criminal records are cleared, they no longer appear on the person's subsequent police check in SA results.

    Before offences become Spent, a period must have elapsed;

    • 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 t6he penalty is $500 or less.

    Victoria (VIC)

    At the time of this post, Victoria does not have a State-based Spent convictions or Criminal records clearance scheme. However, VIC police agencies may follow a public release policy when finalising offences that show up on a national police check in VIC. It is an informal form of the Spent convictions scheme.

    The period of good behaviour is the same as the Commonwealth. The exceptions for spent convictions being applied in VIC may include where the check is for;

    • Working with children
    • Firearms licensing application
    • Teachers
    • Checks that entail a level of contact with vulnerable populations

    Queensland (QLD)

    Under the Criminal Law (Rehabilitation of offenders) Act 1986, minor offences may qualify for the Spent convictions scheme and therefore not appear on a police background check in QLD. However, the individual must;

    • Complete the prescribed rehabilitation period (where issued)
    • They have the charges dropped, quashed or ruled out
    • Obtain a pardon of the offence from the court

    The “rehabilitation period” is;

    • 10 years for convictions by an adult court
    • 5 years for convictions by a juvenile court
    • All other commonwealth legislation applies for offences within commonwealth jurisdiction.

    Tasmania (TAS)

    The Annulled convictions Act of 2003 in Tasmania provides a guide on offences eligible to be cleared of a conviction record and thereby not appear on a national criminal record check in Tasmania.

    The conditions are similar to the Commonwealth stipulations on Spent offences.

    The Annulled Act also prescribes punitive measures for unlawful disclosure of annulled convictions.

    Northern Territory (NT)

    The Spent convictions Act governs all offences eligible to be cleared from an individual’s Criminal records.

    If the individual "passes" the crime-free period without any hitch, the offence is cleared from the records and will therefore not appear on a police criminal check in the NT.

    The Crime free period and further stipulations are similar to the Commonwealth stipulations.

    Western Australia (WA)

    Under the Spent Convictions Act of 1988 in WA, lesser offences can be removed from your WA criminal records. They will no longer show in your subsequent police clearance checks in WA.

    In WA, you must apply to the WA police authorities to have the offence cleared once you satisfy the conditions. These conditions are;

    A "crime-free" period of

    • 10 years for convictions by an adult court
    • 5 years for convictions by a juvenile court

    Also;

    • Western Australia considers a “lesser offence” as one that attracts an imprisonment term of fewer than 12 months or a fine of less than $15 000. These are the only offences that qualify to be Spent.
    • Getting a conviction during the crime-free period restarts the individual’s waiting period automatically.

    Wrapping Up

    However, you should know that not all offences are eligible to be cleared from your criminal records.

    Offences such as

    • Serious convictions in which there was a prison term of 6 months or longer
    • Sexually related offences
    • Offences against corporate bodies
    • Serious offences against a child or vulnerable person
    • Other offences as stipulated in State based legislation that will entail old convictions to show up on police checks and will therefore not be eligible to get expunged.

    Sources

    Commonwealth of Australia (Cth) - Section 85ZV of the Crimes Act 1914 (Cth) - http://classic.austlii.edu.au/au/legis/cth/consol_act/ca191482/s85zv.html

    Australian Capital Territory (ACT) - Spent Convictions Act 2000 - https://www.legislation.act.gov.au/a/2000-48

    New South Wales (NSW) - Criminal Records Act 1991 - https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1991-008

    South Australia (SA) - Spent Convictions Act 2009 -https://www.legislation.sa.gov.au/LZ/C/A/SPENT%20CONVICTIONS%20ACT%202009.aspx

    Victoria (VIC) - Spent Convictions Act 2021 - https://www.legislation.vic.gov.au/as-made/acts/spent-convictions-act-2021

    Queensland (QLD) - Criminal Law (Rehabilitation of Offenders) Act 1986 - https://www.legislation.qld.gov.au/view/html/inforce/current/act-1986-020

    Tasmania (TAS) - Annulled Convictions Act 2003 - https://www.legislation.tas.gov.au/view/html/inforce/current/act-2003-046

    Northern Territory (NT) - Criminal Records Spent Convictions Act 1992 - https://legislation.nt.gov.au/en/Legislation/CRIMINAL-RECORDS-SPENT-CONVICTIONS-ACT-1992

    Western Australia (WA) - Spent Convictions Act 1988 - https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_912_homepage.html

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