An old conviction can feel like it follows you around. It may come up when you apply for a job, rent a home or fill in a form. Many people do not realise that the law lets some convictions be treated as spent. Once a conviction is spent, you may not have to mention it at all.
This post explains the spent convictions scheme in plain terms. It covers when a conviction becomes spent and what that means for you. It also looks at the exceptions and where to go if someone breaks the rules. Laws and processes differ between states and territories, and they change over time.
What a spent conviction is
A spent conviction is an old and less serious conviction that the law lets you keep to yourself. The idea is to support people who have stayed out of trouble for a long time. The South Australian Law Handbook describes a spent conviction as one that cannot be disclosed or taken into consideration. In short, the law draws a line under it once certain conditions are met.
There is a federal scheme and there are state and territory schemes. The federal rules sit in Part VIIC of the Crimes Act 1914. The OAIC says the federal rules can cover federal, state, territory and foreign convictions. A conviction for a state or territory offence may also be covered by the scheme in that state or territory.
When a conviction becomes spent under the federal scheme
The Office of the Australian Information Commissioner (OAIC) explains how the federal scheme works. A conviction is spent if you were not sentenced to prison, or were not imprisoned for more than 30 months. A waiting period must also have passed. The waiting period is 10 years from the day of the conviction, or 5 years for a juvenile offender.
The waiting period is meant to show good behaviour since the conviction. If you commit a further offence during that time, the earlier conviction generally loses its spent status. This is a common point of confusion. A minor offence in year eight can affect a conviction you thought was nearly behind you.
Some people with a drug conviction from years ago ask whether this scheme covers them. The answer depends on the sentence and on what has happened since. Our post on how the criminal justice system deals with those caught using ice covers the earlier stages of that process. The spent conviction rules only come into play much later.
Pardons and quashed convictions
The federal scheme also covers convictions that have been pardoned or quashed. A quashed conviction is one a court has set aside. The OAIC notes that the waiting period does not apply to a pardoned conviction. A quashed conviction is also covered without any waiting period.
What a spent conviction means for you
Under the federal scheme, you can generally choose not to tell another person or an authority about a spent conviction. The OAIC says this includes claiming on oath that you were not charged with or convicted of the offence. That right applies to government bodies such as federal courts and the Australian Federal Police. It also applies in everyday settings, such as a job application.
The scheme also places rules on other people. It is unlawful for a person or agency to disclose a spent conviction where you have the right to keep it private. They also cannot take it into account. The OAIC gives the example of a job candidate who lets an old conviction slip in an interview. The employer cannot use it to assess them unless an exclusion applies.
Questions about work and your rights come up in many forms. If you have concerns about how an employer treats you more generally, our post asking can my boss force me to work if I am sick covers another common issue. Each area of employment law has its own rules. A lawyer can tell you which ones apply to your situation.
The main exceptions
The right to keep a spent conviction private is not absolute. If an exclusion applies, you have no right to withhold a conviction that would otherwise be spent. The OAIC lists several key exclusions under the federal scheme. These include:
- assessing whether a person is suitable to work with children
- law enforcement agencies deciding a prosecution or sentencing matter, or assessing a future employee
- decisions under the Australian Citizenship Act 2007 and the Migration Act 1958
State schemes have their own exceptions too. The South Australian Law Handbook gives two examples under the Spent Convictions Act 2009 (SA). They are applying for work looking after children or vulnerable people, and applying to a government security agency. The handbook notes there are other exceptions as well.
Courts can also see a fuller picture in some matters. For example, a court in a parenting case may look closely at a parent’s background. Our post on why and how family reports are produced explains one way that information reaches the court. If you have an old conviction and a family law matter, get advice early.
How state and territory schemes differ
Each state and territory has its own approach to state offences. Waiting periods, eligible offences and exceptions are not the same everywhere. In South Australia, the Law Handbook says eligible convictions become spent after a ten year qualification period. For juveniles the period is five years, and no further offences can be committed in that time.
The handbook also explains how police checks work in that state. It says SA Police must follow the Act when deciding what to release on a National Police Certificate. Interstate convictions are released under the spent conviction laws of the other state or territory. You can read more on the South Australian Law Handbook page on state offences.
Not every old matter on your record is a conviction in the usual sense. Some people only have minor traffic matters, which may be handled differently. If you are dealing with a fine now, our post on successfully arguing a traffic fine may help. Always check which scheme applies before you answer a question about your history.
If someone discloses or uses your spent conviction
If you believe someone has breached the federal scheme, you can lodge a complaint with the OAIC. If you think an employer has discriminated against you because of a criminal record, the OAIC points you to the Australian Human Rights Commission. Keep notes of what was said or done and when. Copies of forms, emails and letters will also help.
The Privacy Act 1988 may apply as well. The OAIC says criminal record information is sensitive information under that Act. Agencies and organisations covered by the Privacy Act must also comply with it when handling this information. The full detail is on the OAIC criminal records page.
Frequently asked questions
Does a spent conviction disappear from my record?
Under the federal scheme, you may lawfully say you were not convicted of the offence, and others must not disclose it or take it into account. Exclusions still apply in some settings. The exact effect depends on the scheme that covers the conviction.
How long until my conviction is spent?
Under the federal scheme the waiting period is 10 years, or 5 years for a juvenile offender. The sentence must also have been no prison, or no more than 30 months in prison. State and territory rules can differ, so check the scheme that applies to you.
Do I need to disclose a spent conviction for a job working with children?
Working with children is a key exclusion under the federal scheme and under the South Australian scheme. A person assessing your suitability may be able to use and disclose the information. Check the rules in your state before you apply.
Who can I complain to?
Complaints about a breach of the federal scheme go to the OAIC. Concerns about discrimination at work because of a criminal record can go to the Australian Human Rights Commission. State bodies may also have a role for state offences.
This post is general information only and is not legal advice. Laws differ by state and territory and change over time. Speak with a qualified lawyer about your own situation.