Spent Convictions
In Australia, under various Commonwealth, state and territory legislation, a person has the right – in particular circumstances or for a particular purpose –to not disclose certain convictions (e.g. findings ofguilt that occurred a certain number of years ago).These convictions are widely referred to as ‘spent’ or‘rehabilitated’ convictions.
These convictions will not appear on most criminal records checks (i.e. police checks). However, in some circumstances, the police and courts will still be able to share your spent conviction with other government departments or agencies.
Spent conviction laws cover federal offences and offences committed in every state and territory. You should contact the police of the state or territory where you may have committed an offence to obtain further information about their release policies and legislation.
Spent conviction laws in Australian jurisdictions may allow you to withhold information about any spent convictions except if applying for certain jobs. Different rules apply in different Australian states and territories, but the exceptions usually involve applications for jobs in justice and law enforcement, or jobs that involve working with children, the elderly or vulnerable people.
If spent convictions legislation prohibits an administrative decision-maker (e.g. a regulator or licensing authority) from taking a spent conviction into account when making a decision, then the Administrative Review Tribunal may not take that spent conviction into account when undertaking a merits review of the decision.
Victoria’s spent conviction laws are complex. The below information is a very simplified explanation. For more information, refer to
Fitzroy Legal Service’s A Guide to Understanding Victoria’s Spent Conviction Scheme, available at www.fls.org.au/app/uploads/2021/06/Copy-of-Spent-Convictions-CLE-guide-FINAL.pdf and
visit the Department of Justice and Community Safety website (www.justice.vic.gov.au/spent-convictions).
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Victoria now has a Spent Convictions Scheme. The scheme means that the disclosure of criminal records is controlled by the Spent Convictions Act 2021 (Vic) so that:
spent convictions do not appear on your police check (unless an exemption applies);
no one can ask you to disclose information about your spent conviction (except where another law permits this);
you do not have to disclose that you have a criminal record if you only have spent convictions (except in certain circumstances);
it is unlawful to discriminate against you because of your spent conviction; and
people who unlawfully collect or disclose spentconvictions face penalties.
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Under the Spent Convictions Act 2021 (Vic), there are three ways a conviction can be spent:
immediately on the day you were found guilty or after you complete any imposed conditions; or
if you have not been convicted of another offence for 10 years (adults) or five years (young people); or
on application to the Magistrates’ Court.
The category you fall into depends on:
how old you were at the time of the offence or sentencing;
what offence you were convicted for; and
what sentence you received.
Convictions that are spent immediately
Convictions for offending committed before a person turned 15 are automatically spent. Sentences where no conviction is recorded are spent immediately. An infringement conviction (fine) is spent immediately. A qualified finding of guilt (such as a finding of not guilty by reason of mental impairment) is spent immediately.
Many convictions are spent immediately from the date any conditions on the penalty are completed. For example, if your sentence was an adjourned undertaking with a condition to be of good behaviour for a period of 12 months, your conviction would be spent after 12 months being of good behaviour.
Convictions that are spent automatically after the expiry of the crime-free ‘conviction period’
Many convictions are spent automatically after a set ‘conviction period’ without further offending is completed. The ‘conviction period’ is five years for a conviction of a young offender/child under 21 at the time of the offence or 10 years for any other person. If the person reoffends during these periods, the conviction period restarts unless the offending is very minor, such as offending that results in a fine of no more than 10 penalty units (pu), a finding of guilt ‘without conviction’, no penalty other than an order for compensation or restitution, or no penalty is ordered at all after a finding of guilt.
Convictions that can be spent on application to a court
For most ‘serious convictions’ an application must be made to the Magistrates’ Court after the ‘conviction period’ of five years for a young offender/child under 21 at the time of the offence or 10 years for any other person. There are a few exceptions to this, such as where a conviction was not recorded or where a conviction can never be spent. ‘Serious convictions’ are convictions for:
a sexual offence;
a serious violence offence (such as murder, manslaughter, some serious injury offences and kidnapping); or
any other type of offence if 30 months’ imprisonment (or detention in a youth justice facility) or longer was imposed.
Applying for a spent conviction order is free, but you need to obtain a copy of your police check, complete an application form (including any supporting material you want the court to consider about your rehabilitation) and file your application with the court and serve your application on the Chief Commissioner of Police and the Attorney-General. You may need to attend a hearing. More information about how to apply for a spent conviction order can be found at: www.mcv.vic.gov.au/criminal-matters/spent-convictions-scheme/applying-spent-conviction-order.
It is unlawful for you to be discriminated against because of your spent conviction. However, some types of spent convictions can still make you ineligible for certain jobs or volunteer roles. See ‘Employment’ next.
Flowcharts
The two flowcharts below, one for children and young people and one for adults, will enable people to understand whether their conviction is spent.
Spent Convictions Act 2021 flowchart for children and young people (link)
Spent Convictions Act 2021 Flowchart for adults (link)
Spent Convictions
Chapter: 3.9: Understanding criminal records
Contributor: Stan Winford, Associate Director, Centre for Innovative Justice, RMIT University
Current as of: 1 September 2024
Law Handbook Page: 214
Next Section: Employment
