If asked do I have to disclose Commonwealth convictions?
Yes, you are required to disclose all convictions for Commonwealth offences, except those convictions classified as spent convictions.
Part VIIC of the Crimes Act 1914 (Cth) allows "old" and "minor" convictions to be removed from a person’s history, thus encouraging and assisting the rehabilitation of minor offenders who have not re-offended during the prescribed period.
A conviction is taken to be spent if it is:
- relatively minor in nature (the person was not sentenced to imprisonment for the offence or, was not sentenced to imprisonment for the offence for more than 2 1/2 years; and
- a prescribed period of time has elapsed since the conviction (five years where the offence was committed by a minor, ten years in all other cases); and
- no further offences have been committed during the prescribed period.
What is the effect of a spent conviction?
Subject to certain exclusions, where a person's conviction is spent it is lawful for that person to claim that he or she was not charged with or convicted of the offence. Anyone else who knows or could be reasonably expected to know that the conviction is spent is prohibited from disclosing that the person was charged or convicted, or from taking into account the charges or conviction.
Are there any exceptions to this?
There are exclusions from the scheme, many of which are designed to exempt Government bodies to enable them to require disclosure of convictions when assessing the suitability of a person for employment with that government department or agency.
What happens if someone discloses a spent offence?
If a person believes that the provisions regarding spent convictions have been breached they can make a complaint to the Privacy Commissioner (https://www.oaic.gov.au/).
The legislation in this area is complex and a direct examination of the relevant sections of the Crimes Act 1914 (Cth) should be made to ascertain precisely whether a specific conviction is spent for one purpose or for all purposes.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.