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  • Spent Convictions Guidelines in Australia

    Many people erroneously think that all life misgivings are displayed in a Police Check. A Police Check does not feature convictions by a foreign jurisdiction, a social/political group, or other offences that qualify as Spent Charges.

    In the Commonwealth of Australia’s Spent Convictions Scheme, convictions for less serious offences may qualify as Spent. Spent convictions are excluded from a person's Police criminal records and are guided by the State legislation and body.

    However, Spent offences may also vary among the States and Territories in Australia depending on the relevant place.

    Convictions that are covered under this scheme are;

      ✔ Where the conviction ought to be spent

      ✔ The individual is granted pardon for wrongful conviction

      ✔ The convictions have been quashed

    When is an offence considered as Spent?

    The scheme proposes various ways by which an offence may be “spent”. Some of them include;

    1. The individual is granted a pardon for a reason other than that of a "wrongful conviction".
    2. The individual was not sentenced to prison for more than 30 months (commonwealth)
    3. Period of "good behaviour" or waiting period has ended without another conviction

    What is a Period of "good behaviour" (commonwealth)?

    If a juvenile convicted, or a person is convicted by a juvenile court, the waiting period is 5 years. If an adult is convicted or an individual gets a conviction in an adult court, they have a waiting period of 10 years.

    However, if an individual gets a conviction within this waiting period, he or she will lose the right to have the running conviction treated as “spent”. Yet, the waiting period does not apply to offences that are either pardoned or quashed.

    Right to “silence” (Non-disclosure)

    The Spent convictions scheme allows an individual to remain silent about a conviction if they're spent, pardoned or quashed. The individual will not be obligated by any authority to disclose the details of this conviction be it federal, state, territory or foreign offences.

    In summary, when your convictions get scrapped, you can claim on oath that you have no previous conviction.

    Can details of my Spent convictions be disclosed by others?

    It will become unlawful to any organisation, individual or group to reveal details of Spent convictions if the owner has a “right to non-disclosure”.

    Furthermore, even if they get details of the Spent conviction, it will not be a criterion to judge your eligibility for the role/purpose you applied for.

    However, while Spent conviction legislation may exist in all States, the details may not always be interchangeable. For example, an offence that is spent in Queenslandmay be displayed in a Police Check in Tasmania

    To avoid such confusions when you apply for a Police Check in Australia, here are some of the details of the Spent conviction scheme in the different States;

    Australian Capital Territory

    In the ACT, a conviction becomes Spent once the “waiting period” has elapsed;

    • 5 years for juvenile conditions
    • 10 years for adult convictions

    Also;

    • No sentence of imprisonment is imposed
    • Restarts if the individual gets another conviction, especially where such conviction is related to the initial offence.

    New South Wales

    The Spent conviction serves to mitigate the effect a Police Check provided in the state of NSW may have on individual future endeavours. It is governed by the Criminal record acts of 1991.

    Individuals will have their “minor offences” removed from their Police Check on completion of their “waiting period”.

    The waiting period for convictions in NSW is;3 consecutive years of good behaviour for juveniles/children

    • 10 consecutive years of convictions from an adult cour
    • They should not be convicted of another offence during this period

    South Australia

    An offence can be Spent in SA where the court;

      ✔ Pronounces an individual guilty, but records no conviction against them

      ✔ Where the offence is dismissed by the court, or a pardon is given, or the charge becomes invalid.

    Where the waiting period for minor convictions elapse;

    • Ten consecutive years for adults
    • 5 consecutive years for children

    Victoria

    While Victoria does not have a State-based convictions scheme, Disclosures/Interpretation of convictions on official documents are permitted as longas they are lawful and ethical. This does not consider the time that has elapsed.

    Furthermore, the Victorian Police adhere only to a Public Release Policy as an informal form of discretion on Victorian Police checks. It is mostly similar to the Commonwealth Spent Convictions Scheme.

    Some of the practice includes;

      ✔ Details of "lesser convictions" of over 10 years by adults may not be releasedby the Australian Police

      ✔ Details of convictions as a minor over 5 years ago may not be released on your Police Checks.

    However, exceptions to this practice include where the police Check is for;

    • Work with Children
    • Victorian Institute of teaching
    • Applications for Firearms licensing
    • Sexually related offences and co.

    Queensland

    Offences will be removed from an applicant’s QLD based Police Check result if they;

    • 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 of no-conviction, if the earlier conviction was by an adult court
    • 5 years of no-conviction, if the earlier conviction was by a juvenile court

    But,

    • The rehabilitation period restarts if the individual is convicted of another offence within the period.
    • All convictions that attract more than 30 months of sentencing are exempted from the Rehabilitation offender's scheme.
    • Once the rehabilitation period is complete, the “Spent conviction” qualifies for the no-disclosure benefits.

    Tasmania

    Under the annulled convictions Act of 2003, some minor offences are expunged from an applicant's Criminal History records/Police Check Tasmania.

    The conditions for qualifying for this scheme are similar to most States;

    The “waiting period” has elapsed without further convictions. The period is;

    • Ten consecutive years for adults
    • Five consecutive years for children

    Northern Territory

    The Spent convictions Act governs all about Spent conviction in NT. Here, the commonwealth scheme on Spent conviction may also apply in cases with federal aspects.

    Offences can become Spent if they pass the “Crime-free” period for this State. This period is the same as the waiting period;

    • 10 years for conviction in adult court
    • 5 years for convictions by a juvenile court (Youth justice)

    However, these rules are useless where the conviction has;

    • A penalty of 6 months or more
    • Sexually related offences, offences against corporate bodies, and related offences

    Western Australia

    The Spent Convictions Acts of 1988 (WA) allows certain offences (lesser offences) tobe Spent. However, the offender must satisfy certain conditions, including proving acrime-free period. These Spent offences do not show in WA based police clearance checks.

    The “Crime free” period is

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

    In WA, the current process stipulates that individuals must apply to the WA police tohave their conviction classified as a spent conviction.

    Western Australia considers a “lesser offence” as one that attracts an imprisonmentterm of fewer than 12 months or a fine of less than $15 000.

    Convictions can also be Spent through the court sentencing or pronouncement under the Sentencing Act of 1995 and convictions Act of 1988.

    Are there exclusions to Spent convictions and disclosure?

    Other exclusions may apply to the disclosure of an applicant's criminal records depending on the State legislation. Some of them are;

    • Where a new law overrules the standing Spent Convictions scheme
    • Convictions for sexually related offences (will never be Spent)
    • Depending on the purpose of the Police Check

    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

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

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

    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

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

    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

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