What Convictions Can Never Be Spent in Australia?
Many people throughout Australia have a criminal record as a result of criminal convictions. If certain convictions have been on your file for a long time, you might be wondering if they will ever be removed from your record, or if they will remain there for the entirety of your life.
The good news is, some convictions will eventually be removed from a criminal record. Under state laws, several regulations must be satisfied for this possibility. These kinds of convictions are called spent convictions, and the system is known as the Australian Spent Convictions Scheme.
However, not every conviction has this potential. Spent convictions are not a given, and are only eligible for some offences.
What is a Spent Conviction?
A spent conviction is a conviction which has qualified under the spent convictions scheme. The scheme allows for the amendment of criminal records by removing offences which have met the criteria of the scheme. It mostly applies to older and less serious offences.
The records still exist, but the disclosure of such information is limited. Unless there is an exception, a spent conviction will be excluded from the results of a national criminal history check.
What is the Aim of the Spent Convictions Scheme?
The spent convictions scheme plays an important role in the Australian community. It was created to aid offenders of crimes less serious in nature in moving forward with their lives.
A juvenile conviction or an offence from a long time ago can have a lifelong negative impact on an individuals prospects. The scheme aims to mitigate discrimination against people with a criminal record and provide more life opportunities once rehabilitated.
How Long Before a Conviction Becomes Spent?
When a conviction is acceptable to become spent under state legislation, it will only be removed after a certain length of time.
Once all conditions are satisfied, a conviction becomes spent when;
- It has been 10 years since the offender was convicted. This applies to those who were convicted in an adult court only
- It has been 5 years since the offender was convicted in a youth or juvenile court
It’s important to note that not every conviction will become spent after the 10 or 5 year period. In this time, the offender must not re-offend. If they do, the time period starts over.
What are the Conditions of the Spent Convictions Scheme?
There are a set number of conditions outlined in the scheme. Every case is assessed on an individual basis as well as following the rules of the state or territory.
The criteria includes;
- A waiting period of 10 consecutive years for offenders convicted as an adult
- A waiting period of 5 consecutive years for offenders convicted as juvenile/in a youth court
- The offender has not had any further punishable offences during the waiting period
- The offender did not receive a prison term of longer than 30 months
- No statutory exclusion applies to the offence
What Offences Qualify as Spent?
A conviction that is eligible under the scheme will be spent automatically. The individual does not need to apply for a spent conviction, although this is an option if an offence is not automatically qualified.
- Where a conviction is quashed
- Where a conviction is overturned or becomes classified as a wrongful conviction
What Convictions can Never be Spent?
Aside from the general conditions of the scheme, there are other factors which permit an offence to qualify as spent.
Spent offences are usually offences which are less serious in their nature. These offences did not acquire a harsh sentence or penalty. It’s important that all convictions are reviewed with caution. For this reason, more serious offences will never qualify under the scheme.
There are multiple convictions which will never become spent convictions. Examples include but are not limited to;
- All offences which are sexually related
- Offences against corporate organisations
- Convictions which acquired a prison term of more than 30 months
Sexually Related Offences
Sexually related offences will always remain on record, and will always be included in the results of a national police check.
Sex crimes incur harsh penalties due to the nature of the offence. These offences are highly serious, and remain visible on criminal record checks for safety purposes. Disclosing information relating to sexually related offences helps to keep society protected and prevent further potential offences from taking place.
Convictions Against Corporate Organisations
Convictions against corporate organisations are serious offences. If an individual with these convictions requires police clearance for pre-employment purposes, it’s important that potential employers and companies are aware of this criminal history.
This helps to protect future organisations from damages and offences from candidates with previous convictions.
Special convictions could refer to various criminal acts, such as assaults and other violent crimes. These convictions are usually severe and must remain on criminal records for safety purposes.
Convictions with a Longer Prison Sentence
More minor offences will incur a lesser penalty or prison sentence. If the court rules that a conviction requires a prison term of more than 30 months, it is considered a serious offence.
As it is considered serious, it will never become spent.
Can a Spent Conviction be Applied for?
In Australia, there is an automatic system in place to remove offences which meet the criteria of the spent convictions scheme. This means that should the offence tick all the boxes, it will be immediately excluded.
Sometimes, a person can apply to have an offence spent under special circumstances. For instance, if the previous evidence is amended, the conviction changes by law, or the case is assessed by a higher court, resulting in a different outcome.
Before applying for a conviction to be spent, check the full conditions of the legislation in the relevant state. While the overall legislation is the same, there are some variations between states.
The court will not consider an offence to become spent if the criteria is not met, or if there is no grounds for the application.
Unfortunately, the spent convictions scheme does not grant this benefit to all offences. This can be disheartening for some, but the laws are in place for reasons of safety.
Offences which can never be spent will exist on police records for the foreseeable, and in turn, you will have a criminal record with disclosable court outcomes for life. A criminal background check will always disclose the offence, regardless of how much time has passed, and even if you never commit another offence.
The main areas where a conviction will affect a person’s life is during the following;
- Police check applications
- Job applications
- Visa applications
- Certain licensing and registrations
A police check that discloses a criminal conviction can have a big effect on job opportunities. In some jobs, a criminal record automatically excludes a person from certain roles by law. You may be prohibited from working with children, in aged care or any role considered sensitive.
However, many people still find jobs with a criminal record. Unless stipulated by law, lots of employers have the discretion to make informed decisions regarding hiring candidates. A criminal record cannot be used to discriminate against somebody if the offence is not relevant to the role.
Which Jobs are Affected by Criminal Convictions?
A criminal record will not dismiss you from all work, but depending on the convictions, it can prohibit you from working in certain fields.
When applying for jobs, you may find that you are refused hire from;
- The aged care sector
- Working with children
- Working with vulnerable populations
- Working in hospitals
- Working with government
- Public driving
- Some overseas employment
You may also be denied access to certain licences and registrations such as;
- Driver accreditation
- Licensing for firearms and ammunition
Convictions and Australian Police Checks
If you have convictions which are ineligible to be spent, they will stay on your criminal record. When a national criminal history check is performed, the Australian criminal database is scanned for matches to persons of interest. As you have a conviction, your name along with your record will be found here.
Authorities will then review your record in accordance with the purpose of the police check and return a national police check. The document contains information about the convictions, which will then be viewed by employers or another third party depending on the reason behind the check. The information is only shared with your informed consent.
A national police check has two possible outcomes;
- Disclosable court outcomes (DCO)
- No disclosable court outcomes (NDCO)
Any convictions which appear on a background check are referred to as disclosable court outcomes. They could include;
- Sexually related convictions
- Traffic convictions
- Convictions against corporate organisations and institutions
- Violent convictions such as aggravated assault
- Pending charges
- Pending offences
How to Know if a Conviction is Spent
Not everybody is aware of the spent convictions scheme or how it works. If you have a conviction and you wish to know whether it is spent, it is possible to find out.
You can contact the authorities in the relevant state or territory to find out information about a prior conviction you have. Another way of finding out is to apply for a police check online. Anybody in Australia can apply for a police check, and the results will reveal your disclosable court outcomes.
If the results return with a result of no disclosable court outcomes, it’s likely your conviction is now spent. However, authorities determine which offences are released, so it could be that a certain offence has simply been excluded for the purpose of the police check.
The Australian spent convictions scheme is a complex but beneficial legislation for those who have criminal convictions. Because of the scheme, many people are able to rehabilitate and continue to lead successful lives without a lesser or juvenile offence holding them back.
For the safety of the community, some convictions will never be spent. This ensures that the right level of caution and action is taken with regards to more serious offences.
Offences which are non-eligible will always remain in existence, and can have a significant impact on some prospects. However, a conviction will not limit you entirely. There are always ways to handle a criminal record, and many people with convictions find work and build lives following rehabilitation.