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Spent convictions

The legislation that governs spent convictions is the Spent Convictions Act 2009 (SA) and its regulations.

What is a spent conviction?

A spent conviction is a conviction that no longer has any effect. Spent convictions do not appear on a police records check and do not have to be disclosed when questions are asked about a person’s criminal history [s 10]. Under the Spent Convictions Act 2009 (SA), certain convictions will become spent if there has been no re-offending within a specified time period. Convictions can also become spent if they are quashed or a pardon is granted [s 4].

In addition, under s 4(1a), where there has been a formal finding of guilt or a finding an offence proved, but no conviction is recorded against the person, then the finding will be taken to be immediately spent.

What types of convictions can be spent?

Apart from those convictions that are immediately spent, under section 5(1) there are three types of convictions that can become spent:

  • A conviction for an eligible adult offence;
  • A conviction for an eligible juvenile offence;
  • A conviction for a designated sex-related offence.

An eligible adult offence is an offence committed by an adult for which no sentence of imprisonment is imposed or a sentence of less than 12 months imprisonment is imposed.

An eligible juvenile offence is an offence committed as a child for which no sentence of imprisonment is imposed or a sentence of less than 24 months imprisonment is imposed.

A designated sex-related offence is:

  • a sex offence that is constituted by consenting adults (or by an adult procuring another adult) to engage in consensual sexual intercourse or activity; or
  • an offence that is constituted by consenting people of the same sex where it would have not been an offence had they not been the same sex, and at least one of them is 16 or 17 years of age (and none of them is younger) and the person involved was not in a position of authority in relation to the other person engaged in the activity.

What type of convictions cannot be spent?

  • A conviction of a body corporate
  • A conviction of a class prescribed by the regulations
  • A conviction for a sex offence unless the offence is an eligible sex offence
    • An eligible sex offence includes sex offences where no sentence of imprisonment was imposed,and offences that are designated sex-related offences [see s 3 for definitions]

See Spent Convictions Act 2009 (SA) s 5(2).

What is the qualification period before a conviction can become spent?

Under s 7, apart from a sex offence, the qualification period for an eligible juvenile offence (other than where a person was dealt with as an adult) is five consecutive years from the relevant day for the conviction for the offence. In any other case the qualification period is ten consecutive years.

Under s 8A, there is an additional step to make a conviction spent for an eligible sex offence, that is, that a qualified magistrate must also make an order that the conviction is spent. There are several factors that the magistrate must take into account when making such an order and these are provided for in s 8A(5). Such an order can not be made by the magistrate if the same order has been refused by a magistrate within the preceding two years [s 8A(2)(b)]. An application under s 8A of the Act must comply with Form 110 [see Magistrates Court Rules 1992 (Criminal) (SA) r 61.01]. A National Police Check processed within the previous 6 months must also be attached to the Form 110 [see Rule 61.01].

What is the effect of committing another offence during a qualification period?

If a person commits another offence during the qualification period for their first offence, the time that has run towards the qualification period for the first offence is cancelled and the date of the second conviction becomes the new relevant day for the first conviction [s 7(2)]. However, if the second offence is a minor offence, that is, an offence where the defendant is discharged without penalty or receives a fine not exceeding $500, the second conviction will not become the new relevant day for the qualification period starting date [see s 7(4) and s 3 for definition of minor offence]. This means that if a person commits a minor offence during their qualification period, the qualification period will not re-start from the date of the second conviction.

For example: 42 year old Oliver was convicted for a charge of carry an offensive weapon on 12 January 2005. He subsequently commits an offence of disorderly conduct and is convicted of this on 12 January 2011. The time that has run so far in his qualification period for the offensive weapon conviction (6 years) is cancelled and the new relevant day for calculating the qualification period for this offence becomes the date of conviction for the second offence, that is, 12 January 2011 (so it will be 10 years from that date, 12 January 2021). If, however, Oliver had committed a minor offence during the qualification period, the period would not be cancelled and the 10 year period would end on 12 January 2015.

What is the effect of committing a further offence after a conviction has become spent?

A conviction for an offence that has been spent is not revived by a conviction for a later offence committed outside of the qualification period for the first offence [s 9].

Does the Spent Convictions Act apply to convictions from other jurisdictions?

The Spent Convictions Act 2009 (SA) applies to convictions for offences against the laws of South Australia and against any other law [s 6]. However an application to have an eligible sex offence spent cannot be made for a conviction in another jurisdiction [s 8A(3)].

In the case of convictions for offences against the laws of a recognised jurisdiction (another State or the Commonwealth) the mutual recognition principle applies [s 6(2)].This means that a conviction for an offence against a law of a recognised jurisdiction that is spent under the corresponding law of that jurisdiction will be taken to be spent for the purposes of South Australian law. Similarly, a conviction for an offence against a law of a recognised jurisdiction that is not spent (or has ceased to be spent) under the corresponding law of that jurisdiction, will be taken not to be spent for the purposes of the Act.

With regard to overseas jurisdictions, the Act applies with such changes as are necessary to enable the provisions to apply to those convictions in a way that corresponds as closely as possible to the way that it applies to convictions for offences against the laws of South Australia [s 6(3)]. If an offence has no correspondence to an offence against a law of South Australia, then the conviction is immediately spent [s 6(4)].

Other effects of a spent conviction

If a conviction becomes spent, this does not affect the enforcement of any proceedings relating to:

  • A fine or other sum imposed;
  • A breach of a condition imposed;
  • The imposition or accumulation of demerit points; or
  • The operation of any disqualification or other prohibition imposed with respect to the spent conviction;
  • The exercise of any other enforcement power, process or proceeding by a justice agency.

See Spent Convictions Act 2009 (SA) s 5(4)].

Exclusions

Under schedule 1 of the Act, a number of agencies are exempted from the provisions that make it an offence to access information about spent convictions. Further exclusions may also be set out by regulation [sch 1, cl 14].

However, under s 13A, a person in relation to whom a conviction for an offence is spent may apply to a qualified magistrate for an order that some of these exclusions do not apply in relation to the offence. These applications are limited to the exclusions relating to care of vulnerable people and activities associated with a character test for registration, licensing and accreditation purposes. An application under s 13A must comply with Form 110 [see Magistrates Court Rules 1991 (SA) r 61.01]. An application can not be made if the same application has been refused by a magistrate within the preceding two years [see s 13A(3)].

The regulations may also provide that an exclusion set out in schedule 1 does not apply in relation to convictions that are taken to be immediately spent under s 4(1a) [sch (1a) (4)]. Regulation 5AA provides for these purposes that exclusions do not apply to immediately spent convictions under section 4(1a) for the following agencies:

  • Commonwealth agencies (for example, an intelligence or security agency for the purpose of assessing prospective employees, a person making a decision under the Migration Act 1958 (Cth) or AUSTRAC) [sch 1, cl 2]
  • Judicial and associated officers (for example, in relation to an assessment of the suitability of a person being considered for appointment to judicial office) [sch 1, cl 5]
  • Firefighting, police and correctional services (for example, in relation to a person seeking employment in these areas) [sch 1, cl 9]
  • Official records [sch 1, cl 10]
  • Archives and libraries [sch 1, cl 11]
  • Reports and authorised publications [sch 1, cl 12]
  • Non-identifying information [sch 1, cl 13]

Exclusions will continue to apply for immediately spent convictions in relation to the following:

  • justice agencies ( for example, in relation to the assessment of prospective employees) [sch 1, cl 1]
  • designated judicial authorities (for example, in relation to jury selection) [sch 1, cl 3]
  • Parole Board ( for example, in relation to proceedings before or decisions by the board) [sch 1, cl 4]
  • the care of children (for example, the fitness of a person to have guardianship or custody of a child or to work with children) [sch 1, cl 6]
  • the care of vulnerable people (for example, the fitness of a person to have guardianship of an aged person or persons with a disability, illness or impairment or to work with them) [sch 1 cl 7]
  • character tests (for example, for the purposes of registration, licensing or accreditation as a fit and proper person or disciplinary proceedings) [sch 1, cl 8]
  • screening units making assessments if satisfied that there are good reasons for the exclusion [sch 1, cl 9A and reg 5B]

The regulations also provide that if the conduct that was the subject of the immediately spent conviction was also the subject of a breach of the person's employment conditions, the employer may discipline or dismiss the employee and refer to the spent conviction as a referee to other prospective employers who may take it into account [Spent Conviction Regulations 2011 (SA) reg 6].

Spent convictions  :  Last Revised: Fri Dec 13th 2019
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.