What is a Spent Convictions Scheme in Australia?

What is a Spent Convictions Scheme in Australia?

Spent convictions are often discussed with reference to an Australian police check. Police checks perform a criminal history check on the applicant to verify identity and to gather information from police records about them.

Lots of Australian citizens have criminal records from offences which took place years ago. The spent convictions scheme is a legislation which permits certain old offences from being disclosed in a national police certificate. The objective of the scheme is to act as an anti-discrimination policy for those with a record either for minor offences, or offences for which they have since reformed.

The scheme is complex, and operates slightly differently in all states and territories. Not every offence is considered eligible for the scheme, and each case is assessed on an individual basis.

What is a Spent Convictions Scheme?

The spent convictions scheme is a legislation in Australia used in all states and territories. Spent convictions legislation is the limited disclosure of some previous convictions. This can be applied to offences in cases where certain conditions are met, including a crime free period where the individual keeps a clean police record after the offence.

The crime free period otherwise known as the waiting period is generally:

  • Ten years after the offence occurred for adults
  • Five years after the offence occurred for non-adults

The legislation is applied by police authorities when producing a national police certificate. If an offence is considered spent, it will generally not appear in the results of the police check. Aside from the certificate, it also means that the individual does not have to disclose the conviction to any other person, except where exclusions apply.

Why Does Australia Use a Spent Convictions Scheme?

Australia uses the spent convictions scheme to reduce discrimination against individuals with a police record. Lots of Australians have a criminal record, and in many cases the offences occurred when the offender was a juvenile. The scheme aims to help people who have been rehabilitated to continue with their lives, and not be held back by offences from a long time ago. It is also useful in cases where the individual has been acquitted of a crime.

Will the Spent Convictions Scheme Be Applied to a Police Check?

The scheme is used when performing a criminal background check, and authorities use it to assess whether a spent conviction should be disclosed in the results of the document. In most cases, a spent conviction will not appear on the certificate. However, just because a conviction is spent does not guarantee it will never be disclosed in the results of a national police check. Many factors are taken into consideration, and exclusions do apply.

How is the Spent Convictions Scheme Applied to a Police Check?

A police check is conducted either manually at a local police station or through an accredited body that performs a police check online. Applicant’s submit all requested information along with identity documents so that authorities may then search the police database for persons of interest. This is known as a criminal record check, and will pull up all convictions and pending charges against the applicant.

Police will take into account the reason for the check, such as a job application with a care home. As spent convictions are never permanently removed from records, the police come to a decision about the relevancy of the details held on record. Information release policies are applied as well as spent legislation. The results are then recorded in a national police certificate.

If the police check is returned without spent convictions referenced, the individual does not need to mention the past offences to their employer, or any other requesting party.

What Exclusions Apply to the Spent Convictions Scheme?

When spent convictions legislation is applied, authorities make informed decisions as to whether a spent offence should be disclosed. Some decisions include the purpose of the police check, when the offence occurred, and the details of the offence.

For reasons of safety, some offences which are classed as spent will still be disclosed following a police check. This is common when the purpose behind the check is for employment with children and other vulnerable persons. The risk factors associated with this type of work are higher, and employers require full disclosure of an applicant’s police history.

Even following a crime free period, certain criminal offences never become eligible to be spent. Serious crimes like rape and other sexually related offences will never reach spent status, and will be disclosed as part of police clearance regardless of how long ago they happened.

While the scheme exists across Australia, each state and territory operates its own policies, therefore exclusions may differ.

What Criteria is Used to Assess Spent Convictions?

Each case is treated individually, and will be assessed according to the criteria of the state. Typically, spent convictions are eligible if the below criteria is met:

  • If prosecuted as an adult and the crime took place 10 years ago or more
  • If prosecuted as a non-adult or juvenile and the crime took place over 5 years ago
  • The individual has committed no other offences during this time
  • The sentence did not require the individual to be imprisoned for more than 30 months
  • It is not overridden by a statutory or prescribed exclusion

Which Pre-Employment Screening Might Disclose a Spent Conviction?

Pre-employment screening is used repeatedly throughout Australia to check the eligibility of candidates who seek work in certain sectors. National police clearance is a non-negotiable requirement for some employers and companies, and individuals should be aware that despite a conviction reaching spent status, it may still be disclosed in the police certificate.

The offence must be considered relevant for the purpose of the check, and the occupation that the applicant applies for. The following are examples of roles which may disclose details of older convictions:

  • Any child related work
  • Work with vulnerable groups including the elderly and the disabled
  • Working in hospitals and other care settings
  • Public transport drivers including bus and taxi drivers
  • Firefighting
  • Government work
  • Roles which require the possession of firearms

What Impact Does the Spent Convictions Scheme Have?

For those with a criminal record, whether for minor or more serious offences, the spent convictions scheme can have a big impact on their lives. The main result of a spent conviction is that an individual must no longer disclose it to potential employers or other professional purposes.

There are many instances where an individual might require national police clearance. Police clearance follows a criminal background check and discloses the findings in a certificate which can then be viewed by another for employment or various other purposes. Unless an exclusion applies, if a conviction is spent it will not be included in the results.

Police records can be a sensitive topic, and not having to disclose information about an old offence can help people to successfully find work and avoid discrimination based on their record. A person is under no obligation to disclose any information relating to a spent conviction, and no other person can disclose the details without obtaining consent.

How Do I Know if a Conviction is a Spent Conviction?

If a person is unsure of whether an old offence qualifies for the spent convictions scheme, the best way to find out is to contact the local police of the Australian state or territory where the crime occurred. They will be able to assist with relevant information relating to the status of a conviction.

However, depending on the nature of the police check i.e. the job role if for employment purposes, the only way to know for sure if the spent conviction will be included is to obtain a national police check. Whether a spent conviction is disclosed is at the discretion of the relevant authorities.

Is Legislation the Same in Every Australian State and Territory?

The spent convictions scheme exists throughout Australia, but all states and territories have a different criteria as to what qualifies as a spent conviction. This is due to the differences in information release policies and privacy laws which vary across Australia.

Generally, an offence is spent automatically if it meets the criteria. Individuals can contact the state or territory where the offence occurred and request information on spent convictions laws.

Spent Convictions in the Australian Capital Territory (ACT)

In the Australian Capital Territory (ACT) a conviction is not eligible to be spent for any of the following:

  • The offence required an imprisonment term of 6 months minimum
  • Convictions for sexually related offences
  • Convictions against corporations
  • Convictions stipulated by regulations

Spent Convictions in New South Wales (NSW)

In New South Wales, a conviction is not eligible to be spent for any of the following:

  • The offence required an imprisonment term of more than 6 months
  • Convictions for sexually related offences
  • Convictions against corporations
  • Convictions stipulated by regulations

In NSW, the crime free period is slightly different. For adults, the general 10 consecutive years applies, but for minors the period is 3 consecutive years after the order from a juvenile court.

Spent Convictions in Northern Territory (NT)

In Australia’s Northern Territory, a conviction will not become spent if the following apply:

  • The offence resulted in imprisonment for 6 months
  • Convictions for sexually related offences
  • Convictions against corporations

Spent Convictions in Queensland (QLD)

Spent convictions in Queensland are applied using the rehabilitation offender’s scheme, where the rehabilitation period meets the general requirements of the spent legislation’s crime free period.

Spent convictions in South Australia (SA)

In South Australia, some offences are eligible for spent status if they are considered old or of a less serious nature following the crime free period.

Spent Convictions in Tasmania (TAS)

In Tasmania, a conviction is not eligible for spent status if any of the following:

  • The offence required an imprisonment term of more than 6 months
  • Convictions for sexually related offences
  • Convictions stipulated by regulations
  • Applications for firearms
  • Employment with children and other vulnerable persons
  • The crime free period was disrupted by the individual committing a further offence

Spent Convictions in Victoria (VIC)

Victoria does not have a state based spent convictions legislation, meaning all past offences can be disclosed in a VIC police check regardless of when they took place. However, the state of Victoria does adhere to a Public Information Release policy similar to the waiting or crime free period.

Exclusions under this policy apply to:

  • Employment with child related work
  • Convictions for sexually related offences
  • Applications for firearms

Spent Convictions in Western Australia (WA)

In Western Australia, convictions considered less serious or referred to as lesser convictions may be eligible to be spent. For more serious convictions, the individual must apply to the District Court and request that the conviction become spent. Where the crime was committed in WA, the individual must apply to the Western Australian police and request the offence to be spent.

For more information on the spent convictions scheme in Australia, contact local police authorities to request advice. For further advice on online police checks, contact Crime Check Australia.