Spent Convictions Scheme: The Guide
For different purposes, lots of people in Australia require a National Police Check. A police check means performing a background check to search for information in the police history of an individual to establish if they have a criminal record. For some, this can be a daunting experience. Many people have juvenile offences, or convictions from a long time ago. You might be wondering if these offences are still relevant, and whether or not they will appear on a national police certificate.
The spent convictions scheme is in place across Australia to prevent discrimination against people with offences on their record from years ago or offences of a less serious nature. If a past conviction qualifies to become spent, it means that the offence will no longer appear in the results of your police check. However, this is subject to certain criteria, such as the purpose behind the police check. Some offences will never become spent, and some spent convictions will still be disclosed in certain circumstances.
What Is The Spent Convictions Scheme?
The Spent Convictions Scheme refers to legislation which exists in all states and territories of Australia, as well as the Commonwealth. The legislation provides a limit to the disclosure of old offences after a certain amount of time has passed. These convictions are then referred to as spent convictions, which means that they will generally not be disclosed as part of an individual’s criminal record check.
The time frame after an offence was committed is referred to as the ‘waiting period’ or ‘crime-free period’. During this time, the offender must not commit any further offences in order for the legislation to apply.
What Is The Aim Of The Spent Convictions Scheme?
Spent convictions legislation aims to operate as an anti-discrimination policy. By limiting the use of older and less serious offences, the risk of discrimination against individuals who hold a police record is lowered. It allows people with juvenile offences to move forward with their lives following rehabilitation.
The spent convictions scheme can also be applied to cases where the person has been acquitted, or the conviction has been quashed or pardoned.
When Does A Conviction Become Spent?
A certain amount of time is required after a conviction in order for an offence to be considered spent. The individual must not commit any other offences during this time.
The ‘waiting period’ or ‘crime-free period’ is generally 10 years in cases where the offender was tried as an adult, or 5 years in cases where the offender was dealt with as a non-adult. It is only after this time, that an older offence can be considered spent.
If the individual commits another offence, the waiting period begins again from scratch. In order for spent convictions legislation to apply, the individual’s record during the waiting period must be completely clean. This is essentially considered as a rehabilitation period.
Will A Spent Conviction Appear On My Police Check?
Generally, older convictions do not appear on a national police certificate if they are considered to be spent. However, exclusions do apply, and some applicants may find that all offences they have committed despite how much time has passed, will still be disclosed on the document.
This is usually for safety reasons, and is most typically seen for job applications to work with vulnerable groups including children, the elderly and people with a disability.
Do Exclusions Apply To Spent Convictions?
Not every older offence will become a spent conviction, and some past offences which have reached spent status, may still be disclosed in certain circumstances.
When a person applies for national police clearance, there are many considerations made before the information is released from their criminal history check. When assessing whether a spent conviction should be disclosed or left out of the police check, authorities will consider the reason behind the check, the nature of the offence and various other factors to determine if the spent conviction should be released.
Not all older convictions will become spent. Sex offences and other serious crimes are never spent under the scheme, and this legislation applies across Australia. This means they will be disclosed no matter how long ago the offence took place.
For other offences, exclusions apply to many industries for pre-employment screening. Criminal background checks performed for the purpose of child-related work will generally disclose all offences on a national police certificate, regardless of how much time has passed since they occurred.
Many other sectors which require mandatory police checks from candidates may disclose information relating to old convictions for safety purposes. This depends on different state and territory legislation and the exclusions which exist there.
Why Might Some Spent Convictions Still Be Disclosed?
Individuals applying for a National Police Check in Australia for employment purposes within certain fields, or those applying for other services which require a police check, may find that some older offences are still released on a national police certificate. This is for safety reasons, where the police authorities believe that the offence is relevant or important to the purpose of the police check.
While there are many other areas, examples include the following:
- Aged care
- Disability care
- Childcare/child-related work such as a teacher
- Government employment
- Hospital employment
- Firearms permits
- Firefighting/fire prevention
- Public transport driver
Correct legislation including release information policies must be applied to each individual case before releasing the results of a police check.
Is The Scheme The Same In All Australian States And Territories?
Each state and territory in Australia has different information release policies in place to determine which offences are classified as being spent. For an older offence to be classified as a spent conviction, the spent convictions legislation of the specific state must be adhered to, so this can differ.
In the case where an offence already qualifies to be spent, it will be spent automatically, except where the offence occurred in Western Australia. In Western Australia, the individual can contact the police authorities directly and apply to have the conviction spent.
If you have doubts or concerns about your police history, you can contact the relevant police jurisdiction in the location that the offence occurred, and ask about their spent convictions policy.
Who Uses Spent Convictions Legislation?
Australian police agencies in all states and territories follow the policies of spent convictions legislation when assessing applications for a National Police Check.
When an individual applies for a police check online or manually, their personal information is reviewed thoroughly before police clearance is obtained. The applicant must give all information requested, including the purpose as to why they need the police check (for example, for employment with a school). The individual police agencies use the legislation to determine which information and which offences are released in the results, following the policies of the particular state.
Police jurisdictions are solely responsible for applying the spent convictions scheme. Accredited bodies such as Crime Check Australia, have no influence over which offences are eligible to be spent.
If an offence is considered spent, it will be automatically excluded from the details of the police check certificate. In this case, the applicant is under no obligation to disclose to any party the details of a spent conviction, or that it exists at all.
What Criteria Must Be Met For A Spent Conviction?
Before a conviction becomes spent, it is assessed following protocol. It is not applied solely to offences which pass a certain period of time, there are other factors which must be reached.
The spent convictions scheme applies to convictions which meet the following criteria:
- The date of the offence is older than 10 years for an individual prosecuted as an adult or 5 years for those prosecuted as a non-adult
- There was no term of imprisonment, or the imprisonment term was not more than 30 months
- There have been no further offences during the waiting period of 10 years or 5 years for juvenile offences
- A statutory or prescribed exclusion does not apply
How Does The Scheme Affect An Individual?
If the criteria is met to qualify an older offence as a spent conviction, the main impact this has on an individual with previous convictions is that it will not be disclosed as part of their police clearance. The individual is not obligated to disclose information about the offence to any person. For example, if the person attends a job interview and is asked about spent convictions, they can refuse to comment or legally lie about it. However, this is not the case where an exclusion applies.
By law, any other party including authorities are banned from accessing or disclosing any of the details relating to the spent convictions of an individual.
Can I Find Out If A Conviction Is Spent?
If you are applying for a Nationally Coordinated Criminal History Check and you want to know whether or not an old conviction will appear in your results, you can contact the relevant police agencies in the state or territory in which the offence took place. You can then enquire if the conviction is still held on record, and whether it will be revealed in a National Police Check.
What Is The Right To Non-Disclosure?
The right to non-disclosure means that an individual does not have to volunteer information about a spent conviction they have. Under the scheme, the individual holds the right to withhold details of a prior conviction which is now spent. They are no longer required by law to disclose them when applying for jobs, except in cases where the right to non-disclosure does not apply.
Where the individual has a right to non-disclosure, it is illegal for another individual, organisation or police agency to disclose the information.
If a person attends an interview for a job, and divulges information that relates to a spent conviction, the information cannot be used against them, or used to determine their eligibility for the role.
I Feel I Have Faced Discrimination For My Criminal Record. Who Can I Contact?
Each person has the right to not be discriminated against for any purpose. The spent convictions scheme aims to prevent discriminatory behaviour against those who have a criminal record.
If you feel that you have faced discrimination on the basis of your police history, you should contact the Australian Human Rights Commission and express your concerns. The AHRC is a third party organisation which works independently to address complaints about human rights.