Although a national criminal history check reveals Disclosable Court Outcomes (DCOs) of an individual, not all offences may be revealed in the check. This depends largely on the purpose of the check being obtained.
Though Criminal Background Checks are meant to protect the community, the vulnerable, citizens, resources and the state, it should not become a basis for discrimination towards individuals (who failed their check). This is one of the objectives of the Spent Convictions Scheme.
Disclaimer: The information below is general and should not be relied upon to determine whether or not a conviction or finding of guilt will or will not be disclosed on a Nationally Coordinated Criminal History Check (Police Check) provided by Australian National Character Check™. Where there is any doubt or confusion, you should first contact the Criminal Records section in the Police service of the State or Territory where the offence in question occurred and enquire as to whether the matter will be disclosed in a Police Check or not.
This scheme is backed by legislation known as the Spent Convictions legislation. It limits the disclosure of certain older offences once a period stipulated by the law expires or some certain conditions are met. The period is referred to as the 'waiting period' or the 'crime-free' period. Generally, the waiting period is;
√ Ten years have elapsed since the conviction was received as an adult (in a non-juvenile court).
√ Five years have elapsed since the conviction was received as a non-adult.
Convictions are categorized as spent according to each State’s/Territories and Commonwealth legislation and will not be disclosed in a National Police Check certificate in Australia.
However, for some purposes of the Check, some convictions will be revealed in the National Police check. For example, in all States and Territories, sex offences are never classified under the Spent Convictions scheme and are always disclosed irrespective of the time elapsed since the conviction.
Application for National Police Checks for the following purposes may disclose details of older convictions/findings of guilt. This list is not exhaustive, and depending on varying State legislations, other purposes might qualify in addition to;
Working in aged care police checks
Working with vulnerable persons or groups
Working with Children/Working as a teacher/teacher’s aide
Working with or caring for the disabled
Permits for possession of firearms
Immigration Detention Centre employment
Taxi or Ride-Share or Bus driver
For an offence to qualify as a spent conviction, it must conform to the Spent Convictions Scheme of that State. However, where the offence is already capable of being spent, it will be Spent automatically. If the offence was committed in Western Australia, you will have to apply to the WA Police to have the offence as Spent.
Every state has different policies and legislations regarding what offences and other what criteria offences qualify as being spent.
If you have requested for a Police Check, before issuing the national police certificate, the Australian Police agencies will apply the legislation or release policy of that State to any offences the person may have.
You can hardly influence this decision, as it is the sole prerogative of the State in the jurisdiction and the Police authorities. Also, accredited agencies like Australian National Character Check cannot and do not influence if an offence is considered spent or not.
Any offence that is considered as Spent will be expunged from the records of the applicant, and they do not have to disclose it to the requesting party. However, every applicant must declare the purpose of the Check during a national police clearance application.
Part VIIC of the Crimes Act of 1914 (Commonwealth) supervises the aspects of the collection, use and disclosure of old convictions information. In essence, all laws subsumed under the 'Spent Convictions Scheme'
The general ‘Spent Convictions’ scheme of the Commonwealth covers convictions of individuals that are;
Older than 10 years from the date of the conviction (5 years for juvenile offenders)
The sentence did not carry an imprisonment term of more than 30 months
There was no charge or conviction during the 10 years (5 years for juvenile offenders) waiting period
A statutory or prescribed exclusion must not override a “spent conviction” application.
The applicant will not have to disclose that conviction to any person unless an exclusion applies.
Any other authority including Commonwealth authorities are prohibited from accessing, disclosing or leveraging the Spent Conviction details of the individual.
In the ACT, a conviction will become spent according to the Spent Convictions Act of 2000, and under the commonwealth legislation on Spent Offences. Criminal Convictions are based on the Crimes (Sentencing) Act of 2005, and the crimes act of 1914 is also applicable in some cases.
The conviction cannot become spent if;
√ The offences incurred a penalty of at least 6 months imprisonment,
√ Convictions of sexual offences,
√ Conviction of a corporation
√ Convictions prescribed under the regulations
10 years if the crime was committed as an adult, AND
5 years for crimes when the conviction was as a non-adult.
The Spent convictions scheme in NSW is governed under the Criminal Records Act of 1991. The Scheme helps mitigate the future influence of relatively minor conviction of the individual once the crime-free period has expired.
At the end of the crime-free period, the conviction becomes spent and is removed from the individual's nationally coordinated criminal history check certificate.
Which convictions can be spent in NSW?
New South Wales legislation on spent offences allows all other offences to be spent except the following;
Convictions of which a prison sentence of more than 6 months was imposed
Convictions for all sexually-related offences
Convictions against corporate bodies
Convictions stipulated by regulations
Convictions which the crime-free period has expired; some convictions are even considered Spent immediately.
Where there is proof of offence and the person is found guilty, but it does not lead to a conviction. It is “Spent” immediately.
In Court for minors; where a charge is dismissed, and caution is issued.
Where guilt of an offence is established but the offender is ordered to be released on entering a bond of good behaviour. The finding/conviction becomes spent at the expiration of the period, or when the conditions are met.
The offence ceases to become an offence (where the law has changed).
√ A period spanning 10 consecutive years for convictions by a court (other than the court for minors);
√ The person must not have committed any other offence punishable by prison within this period.
√ Must not be convicted of any offence punishable by prison, been in prison or unlawfully absconded.
√ It is 3 consecutive years after the date of the order from a children's Court.
√ The person must not receive a control order during this period, or
√ not have unlawfully absconded
Some offences in Southern Australia can be considered old, or “less serious” to be included in an individual’s criminal record. The offences are subsumed under the Spent convictions Act 2009, called Spent Offences.
Spent offences help protect people from unfair and unreasonable discrimination from older or lesser convictions. Offences are considered spent after a crime-free period has elapsed.
If an offence is considered Spent in South Australia, it is not disclosed in the Individual's National Police Check in SA. However, Checks for people working with the vulnerable, aged, children and other sensitive roles may be required by law to disclose such charges.
How does an offence become Spent in South Australia?
Some of the criteria that may lead to an offence become spent include;
√ Where a court finds an individual guilty but records no conviction against them.
√ Where an offence is dismissed by the court, a pardon is given or the charge becomes invalid
For adults in SA;
For minors in SA;
It may become difficult getting employment or admission in some organisations in Victoria if you have failed your national police check in Victoria.
The state of Victoria does not have a state based spent conviction scheme. All offences/convictions are lawful to be disclosed in any relevant documents, irrespective of how much time has elapsed.
However, if you are convicted under the commonwealth jurisdiction, and fulfil certain conditions, then you may be considered under the Commonwealth Spent Conviction Scheme.
Are all offences disclosed in my VIC Criminal History Check?
The Victorian Police complies to a Public Information Release Policy, which is an informal, and discretionary practice.
It follows that;
√ If you were an adult last found guilty of an offence over 10 years ago, details of the offence will not be released by the Australian Police.
√ If you were last convicted of an offence as a minor over 5 years ago, the details of the offence will not be released
Applications involving work with children
Victorian Institute of teaching
Application for firearms license
Sexually related offences and other serious offences.
√ the prescribed (rehabilitation) period has been completed or
√ the offence was quashed or
√ A Pardon from the offence was granted by the court.
Ten consecutive years since the offender was indicted or convicted as an adult.
Five consecutive years for convictions where the offender was a juvenile(in a Youth Court)
√ It becomes unlawful for any official to disclose details of the conviction in the individual’s documents.
√ The person can lawfully deny (including under oath) of ever being convicted of such crime.
√ The conviction will not be disclosed for occupational, licensing and similar purposes (except where stipulated by law) court.
Where the convicted person consents
The minister grants a permit authorising such disclosures (where it becomes necessary and legitimate)
There is an exemption for the disclosure of such conviction
The annulled Convictions Act of 2003 allows for some minor offences to be removed from an individual’s criminal record subject to certain conditions.
If any conviction is annulled from an individual’s record in Tasmania, information regarding such conviction will not be disclosed on a Police Check Tasmania or similar documents.
A conviction can qualify as being spent if;
√ Ten years (waiting period) of good behaviour has elapsed since the individual was convicted as an adult.
√ Five years (waiting period) of good behaviour has passed since the individual was convicted as a juvenile (under 18 years old).
The individual was convicted of a punishable offence (imprisonment or fines) within the waiting period; the required period restarts from the point of the new conviction
A new law overrides the legitimacy of the old law under which the individual was convicted
Offences for which a prison term of more than 6 months was imposed, or if the conviction was for a sexual offence
For purposes where disclosure of such convictions are necessary including; Licenses for firearms, working with children, aged care, vulnerable group, and related purposes.
If a police record is obtained from another Australian Police jurisdiction, the applicable legislation for that jurisdiction will be applied
Where exclusions or stipulations are made by the law, or by request of other Jurisdictions
If convictions are considered Spent in the Northern Territory, it will be removed from an individual’s National Police Check in NT.
The Northern Territory’s legislation on spent convictions is contained in the Spent Convictions Act. The Commonwealth Spent convictions scheme also applies to Criminal offences in NT that have a federal aspect.
Offences become spent in the Northern Territory after a crime-free period, which is;
√ Ten consecutive years of good behaviour for offences convicted of as an adult (in a non-Youth court)
√ Five consecutive years of no unlawful deed if you were convicted in a Youth Justice court (juveniles)
The penalty imposed was 6 months imprisonment or less
For certain Convictions like sexual offences, an offence against corporate bodies, and related.
The Spent Convictions Act of 1988 (WA) makes provision for “lesser convictions” to be spent by the Western Australia Police and therefore not appear on a national police clearance in WA. Offences are considered spent after a crime-free (waiting) 10 years from conviction including (after) any term of imprisonment that is imposed.
A “Lesser Convictions” in WA is one that attracts an imprisonment term of 12 months or less, or where a fine of less than $15,000 was imposed; else it is considered a “Serious Offence.” An individual must not be convicted of a new offence during the waiting period; else the period restarts from the time of the new conviction.
Any other convictions including those regarded as “serious convictions” (found under section 6 of the Act) can only be Spent by applying to the District Court.
The court may also make a “Spent conviction” order during sentencing; that a Conviction is a "Spent Conviction" to be Spent. These legislations are governed by the Sentencing Act of 1995 and Convictions Act of 1988 (WA).
If the offence was committed in Western Australia (WA), you will have to apply to the WA Police to have the offence as Spent.
The Commonwealth Spent Convictions Scheme may also apply where the offences relate to Commonwealth jurisdiction within and Outside the state.