As well as the sentence imposed for an offence an offender may often suffer other consequences as a result of being proved guilty of the offence. Some of those consequences may last for life. Some of those consequences are laid down by law, but others are imposed by society - such as the loss of friends and employment problems.
The need to disclose that a person has been found guilty of a criminal offence depends on the circumstances under which the question is asked. Most forms of application for employment, for example, do not require disclosure of traffic offences of a minor nature but there is no hard and fast rule.
Unless a particular question contains within it an indication of a time limit (for example, convictions or offences found proved within ten years prior to the date of signing the form) any relevant conviction or, if necessary, court appearance should be disclosed, again depending upon the exact form of the question.
Where a court finds a person guilty of an offence but it was recorded 'without conviction' [see Sentencing Act 2017 (SA) s 24], then they can truthfully state that they do not have a conviction.
Are there any provisions in South Australia for certain convictions to be removed from a person’s record after a certain period of time (‘spent’ convictions)?
SA Police are bound by the Spent Convictions Act 2009 (SA) when determining what to release on a National Police Certificate.
A spent conviction is one that cannot be disclosed or taken into consideration.
Eligible convictions become spent following a ten year qualification period if no further offences are committed, in South Australia or elsewhere. For juveniles, a five year qualification period applies.
For further information see Spent Convictions.
Interstate offences will be released in accordance with the spent conviction and rehabilitation legislation and policy of the State or Territory concerned. While South Australian Police are unable to release traffic history from some states and territories, this information can be obtained upon application to the specific departments in those states.
I have a conviction for theft that occurred over 10 years ago and which does not show on my National Police Certificate, if asked do I have to disclose details about this?
Under the Spent Convictions Act 2009 (SA) you do not have disclose any convictions which have become spent, however, there are a number of exceptions to this provision (for example, if a person is applying for work looking after children or vulnerable people, or if applying for employment with a government security agency).
For more details see Spent Convictions.
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.
How do I get a copy of my criminal record?
A National Police Certificate (NPC), often referred to as a 'police check', provides a national summary of an individual's disclosable offender history. It is generally requested by organisations as one part of the process to ensure the integrity of staff or volunteers.
National Police Certificate Application forms can be downloaded and completed on line via the SAPOL- Apply for a Police Record Check website.
Fees apply and are gazetted by the SA Government. Applicants who are unable to complete an on line form can attend a police station and request a hard copy form.
What information does a person’s criminal record show?
South Australia Police (SAPOL) record both personal information and details about charges and convictions on individual criminal records. The information shown includes:
- Offender’s full name
- Alias (if any)
- Residential address
- Personal description (hair and eye colour, height, identifying marks and build)
- Date of birth
- Offences with which a person has been charged (i.e. arrests)
- All court appearances (including court appearances as a juvenile)
- Whether a person was convicted of any offences and details of these offences, including date of conviction and whether conviction was recorded
- Details of sentences imposed
- Other information including specific departmental records, outstanding warrants, paedophile restraining orders, intervention orders, diversions, cautions and expiable matters.
Note: there is often a time lapse between when a conviction is recorded by the courts and the updating of SAPOL’s criminal records databases. As a result the NPC can only reflect the accuracy and completeness of these records up to the date of issue.
SA Police are bound by the Spent Convictions Act 2009 (SA) when determining what to release on a NPC. Under the Act, it is an offence to release information regarding the convictions of a person if those convictions are deemed to be spent under the Act. The Act defines a conviction as: a formal finding of guilt by a Court; or a finding by a Court that an offence has been proved.
A spent conviction is one that cannot be disclosed or taken into consideration. Often the outcome for a matter is "without conviction" or "no conviction recorded". As these are findings by a Court they still meet the definition of conviction, but they are taken to be immediately spent. Other eligible convictions become spent following a ten year qualification period if no further offences are committed, in South Australia or elsewhere. For juveniles, a five year qualification period applies.
For further information see Spent Convictions.
Who can see my criminal record/history?
You may view your own personal history but access to these records can only be obtained by someone else (for example, an employer) with your permission. Personal history may also be released to approved organisations and government departments that have entered into a Memorandum of Understanding for the release of personal information.
How long does it take to get a National Police Certificate?
Requests for National Police Certificates usually take between 5 to 15 working days.
Who is eligible for a free police check?
Fee waivers apply only to unpaid South Australian volunteers working with approved Volunteer Organisation Authorisation Number (VOAN) organisations. The cost of VOAN police checks is funded by the South Australian government. VOAN organisations qualify for volunteer fee waivers because they provide services to vulnerable groups within the community. The VOAN is a secure number and must remain secure within an organisation to prevent illegitimate usage.
For more information click on the following link - National Police Checks .
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)].
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. The agencies include:
- Justice agencies (for example: the Australian Federal Police, police force of a State, Director of Public Prosecutions for the Commonwealth or a State, or Department for Correctional Services) [Spent Convictions Act 2009 (SA) Schedule 1, section 1];
- Commonwealth agencies (for example: an intelligence or security agency, a person making a decision under the Migration Act 1958 (Cth), or AUSTRAC) [Schedule 1, section 2];
- Judicial authorities [Schedule 1, section 3];
- The Parole Board [Schedule 1, section 4];
- Assessment of suitability of persons appointed or being considered for appointment as judicial and associated officers (magistrates, justices of the peace) [Schedule 1, section 5];
- Enquiries and assessments into the fitness of a person to have guardianship or custody of a child or a person seeking employment in the care of children [Schedule 1, section 6];
- Enquiries and assessments into the fitness of a person to have guardianship of an aged person or person with a disability or seeking to undertake work that involves the care of elderly or disabled persons [Schedule 1, section 7];
- Activities associated with statutory character tests for licensing [Schedule 1, section 8];
- Firefighting, police and correctional services [Schedule 1, section 9]; and
- Prescribed screening units, when operating for a prescribed purpose [see Schedule 1, section 9A; Spent Convictions Regulations 2011 (SA) reg 5B. Prescribed screening units can include those established for child protection or teacher's registration purposes].
However many of these exclusions do not apply if the conviction has been quashed; or the person has been granted a pardon for the offence; or is immediately spent under s 4(1a) (see above). However the exclusions for justice agencies, designated judicial authorities, the Parole Board, and prescribed screening units still apply [see s 13(3a)].
Additionally, 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 children, care of vulnerable people and activities associated with a character test (police checks). 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 s13A(3)].
Many employers will not employ a person with a criminal record, particularly where an offence involves an element of dishonesty. However, the dismissal of an existing employee because of a conviction may give rise to an application for unfair dismissal if the conviction is not relevant to the employee's work, see: Employment: unfair dismissal.
Some criminal convictions may affect license holders and registered professionals. Those who work with children and people with disability, and must have a clearance check conducted, will find that both prior charges and convictions may form part of the information assessed for the clearance check.
For information about license holders, registered professionals and employment clearances, see EMPLOYMENT, Criminal Records and Clearance Checks.
Under the Criminal Law (High Risk Offenders) Act 2015 (SA), serious sexual offenders and serious violent offenders may be liable to extended supervision and possibly detention after their term of imprisonment or parole period has expired.
The Act does not apply to youth (a person under the age of 18) [s 6], except where the person is a terror suspect, in which case the Act applies if they are aged 16 years or over [s 6(2)].
A serious offence of violence means a serious offence where the conduct constituting the offence involves:
- (a) the death of, or serious harm to, a person or a risk of either of these; or
- (b) serious damage to property in circumstances involving a risk of the death of, or harm to, a person; or
- (c) perverting the course of justice in relation to any conduct that, if proved, would constitute either (a) or (b).[s 4]
A serious sexual offence means any of the following offences where the maximum penalty prescribed for the offence is, or includes, imprisonment for at least 5 years:
- (a) an offence under section 48, 48A, 49, 50, 51, 56, 58, 59, 60, 63, 63B, 66, 67, 68 or 72 of the Criminal Law Consolidation Act 1935 (SA) (that is, sexual offences such as rape, indecent assault, gross indecency, production or dissemination of child exploitation material etc); similar offences to these and attempts to or an assault with intent to commit these offences;
- (b) and offence against a corresponding previous enactment substantially similar to those offences listed above in (a)
- (c) an offence against the law of another State or a Territory corresponding to an offence referred to in paragraph(a).[s 4]
A high risk offender is:
- (a) a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence; or
- (b) a person referred to in paragraph (a) who is serving a sentence of imprisonment any part of which is in respect of any of the following offences:(i) an offence under section 58 (acts of gross indecency) or 63A (possession of child exploitation material) of the Criminal Law Consolidation Act 1935 (SA);(ii) an offence under section 44, 45, 65 or 66N(2) of the Child Sex Offenders Registration Act 2006 (SA) (sections to do with reporting obligations, giving false information, child-related work, and tracking devices);(iii) an offence under section 99I of the Criminal Procedure Act 1921 (SA) (breach of restraining orders);(iv) an offence prescribed by the regulations for the purposes of this paragraph; or
- (c) a serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence; or
- (d) a person who is subject to an extended supervision order; or
- (e) a terror suspect (as defined in section 5A of the Criminal Law (High Risk Offenders) Act 2015 (SA) who is serving a sentence of imprisonment.
Extended Supervision Orders
The Attorney General can apply to the Supreme Court for an Extended Supervision Order to a person who is a high risk offender [s 7(1) Criminal Law (High Risk Offenders) Act 2015 (SA)].
The application has to be made within 12 months of the end of the person’s sentence (including on release or parole or home detention) or extended supervision order or after the sentence is wholly satisfied (for life imprisonment) [s 7(2)].
The Supreme Court has to consider at least one report from a medical practitioner including assessment on the person’s likelihood of re-offending with similar offences [s 7(3)]. The Supreme Court’s main determination must be based on the safety of the community [ss 7(5), 7(4)(b)].
Extended Supervision Orders can last for 5 years and further orders can be made following this time [see s 12].
Extended Supervision Orders include conditions that the person not commit further offences, not possess any firearms or ammunition, or offensive weapons [see ss 10(1)(a)-(c)]. A person under an order is under the supervision of a community corrections officer and has to submit to tests for gunshot residue as the officer requires [s 10(1)(d)]. Other conditions can be imposed by the Court and these conditions can also be varied by the Court [see ss 10(1)(e),10(3)-(4)].
The Parole Board can also impose conditions on people under extended supervision orders including in relation to requiring electronic monitoring, requiring the person to live at a certain address, undertake programs or activities, preventing communication with certain people, and various other conditions [see ss 10(2), 11].
Continuing Detention Orders
A Continuing Detention Order can be made by the Supreme Court if the supervision order is breached, and the Court considers that the person ‘poses an appreciable risk to the safety of the community if not detained in custody’' [s 18(2)].
The order is made ‘until the expiration of the supervision order, or for such lesser period as may be specified by the Court’ [s 18(2)(b)].
A criminal record can have serious and long-reaching consequences, particularly in the area of employment and migration. This section covers some of the legal consequenses that flow on from having a criminal conviction.
A person convicted of a serious offence can be refused the right to hold public office and in some cases is not able to hold the office at all.
For example, on conviction of indictable offence, you can not be a member of the South Australian Parliament or fill a casual vacancy in Local Councils in South Australia [see s 17(h) and s 31(h) Constitution Act 1934 (SA); s 54(1)(i) Local Government Act 1999 (SA)]. Under the Local Council (Elections) Act 1999 (SA) a person who has been sentenced to imprisonment and is, or could on the happening of some contingency become, liable to serve the sentence or the remainder of the
sentence can not be elected as a councellor [s 17(3)(c)].
If you have been convicted of any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer then you are not able to run as a candidate for Federal Parliament [s 44 Commonwealth of Australia Constitution Act (Cth)].
Loss of right to vote in Federal elections
Under section 93(8) of the Commonwealth Electoral Act 1918 (Cth), a person who is serving a sentence of imprisonment for an offence punishable by imprisonment of more than three years loses the right to vote in Federal elections, although there is no loss of voting rights in State elections.
- has been convicted of an offence carrying the death penalty or life imprisonment as a maximum
- has been sentenced to imprisonment for more than two years
- in the previous ten years, has been imprisoned, detained in a youth training centre or been on probation or parole
- in the previous five years, has been convicted of an offence punishable by imprisonment or had a driver's licence disqualified for more than six months
- is on a current bond to be of good behaviour
- has a charge punishable by imprisonment waiting to be heard.
Some countries will not issue visas to visitors with criminal records. It is best to check with the foreign consulate of the country concerned.
The Migration Act 1958 (Cth) s 203 provides for the deportation of non-citizens who are convicted of certain serious offences. As well, a visa may be refused or cancelled on character grounds [s 501].
See also the following section on Citizenship about dual nationals and the Immigration and Citizenship chapter of the handbook. See in particular the section on Visa cancellations under section 501 (character grounds).
There are several ways that a dual citizen may cease to hold Australian citizenship. For a full list of these see section 32A of the Australian Citizenship Act 2007 (Cth). Not all of these require a conviction and in some instances having engaged in certain conduct in itself will lead to automatic cesssation of citizenship.
Conviction for terrorism offences and certain other offences:
- they have been convicted of certain offences#; and
- sentenced to a term of imprisonment of at least 6 years (or terms that total at least 6 years); and
- they are a dual national; and
- the Minister is satisfied that the conduct of the person demonstrates that they have repudiated (rejected) their allegiance to Australia; and
- the Minister is satisfied that it is not in the public interest for the person to remain an Australian citizen.
#The relevant offences are:
- Engaging in international terrorist activities relating to explosives and lethal devices [Division 72 Subdivision A of the Criminal Code Act 1995 (Cth)]
- Treason [section 80.1 of the Criminal Code Act 1995 (Cth)] or Materially assisting the enemy [section 80.1AA]
- Espionage [see section 91.1 of the Criminal Code Act 1995 (Cth)]
- Terrorism offences [see Part 5.3 of the Criminal Code Act 1995 (Cth)]
- Offences relating to foreign incursions (invasions) and recruitment [see Part 5.5 of the Criminal Code Act 1995 (Cth)]
- Treachery [section 24AA of the Crimes Act 1914 (Cth)] or Sabotage [section 24AB of the Crimes Act 1914 (Cth)]
- Engaging in (or preparation for engaging in) foreign incursions [see sections 6 and 7 of the repealed Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)]
No distinction is made between individuals who obtained their citizenship by application and those who obtained it by birth (descent) so the law applies in either case [s 35A(3)].
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.