Criminal record information is classed as 'sensitive information' in the Privacy Act 1988 (Privacy Act). Sensitive information is a subset of personal information that is given additional protections.
Criminal records may also be covered by the Commonwealth Spent Convictions Scheme under the Crimes Act 1914, or by a spent conviction scheme in a relevant state or territory. The Australian Information Commissioner has the power to investigate breaches of the legislation and is also required to provide advice to the Attorney-General in relation to exemptions under the scheme.
Commonwealth Spent Convictions Scheme
The Commonwealth Spent Convictions Scheme (the Scheme) allows an individual to not disclose certain criminal convictions after a sufficient period of good behaviour, and also prohibits unauthorised disclosure and use of this information. It covers convictions for less serious federal, state (including the Northern Territory and ACT) and foreign offences, with varying protections available according to which type of offence (federal, state or foreign) gave rise to the conviction. The Scheme also covers pardons and quashed convictions. A conviction for a State offence may also be covered by a spent conviction scheme in the relevant State or Territory.
There are some exclusions to the Scheme, but they are very limited. Where an exclusion applies, an individual will not have the right to withhold information about a conviction that would otherwise be spent.
An individual who believes that a person or a Commonwealth or State authority has breached the provisions of the Scheme can complain to the Office of the Australian Information Commissioner (OAIC).
The OAIC will shortly be releasing a guide to the Spent Convictions Scheme. In the meantime, if you have any questions, please contact us.