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Privacy fact sheet 41: Commonwealth spent convictions scheme

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May 2014

The Commonwealth spent convictions scheme (the Scheme) allows an individual not to disclose certain criminal convictions in particular circumstances, and prohibits unauthorised use or disclosure of information about the conviction. The Scheme applies to convictions for less serious Commonwealth, state (including the Northern Territory and ACT) and foreign offences. It 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.

When is a conviction covered by the Scheme?

The Scheme is outlined in Part VIIC of the Crimes Act 1914 (Part VIIC). Rights and obligations under the Scheme arise where an individual is convicted of a less serious Commonwealth, state or foreign offence and

  • it is a ‘spent conviction’, or
  • the individual has been granted a ‘pardon’ in relation to that conviction, or
  • the conviction has been ‘quashed’.

Importantly, the Scheme generally does not apply to more serious convictions, where the individual has been sentenced to imprisonment for more than 30 months.

In this context, a pardon means a free and absolute pardon granted to an individual because he or she was wrongly convicted of an offence. A quashed conviction is a conviction that a court has set aside.

For the purposes of the Scheme, an individual is taken to have been convicted of an offence if:

  • they have been convicted of the offence, or
  • they have been found guilty of the offence but discharged without conviction, or
  • they have not been found guilty of the offence but a court has taken it into account in sentencing them for another offence.

Importantly, the scope of rights and obligations under the Scheme will vary depending on:

  • whether the conviction is for a Commonwealth, state or foreign offence,
  • who knows or is being told about a spent conviction, and
  • where the person being told is located.

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When is a conviction spent?

Under the Scheme an individual’s conviction is spent where:

  1. the individual has been granted a pardon for a reason other than that the individual was wrongly convicted of the offence, or
  2. the individual was not sentenced to imprisonment for the offence (or not imprisoned for more than 30 months) and the waiting period for the offence has ended.

The waiting period is ten years beginning on the day on which the individual was convicted of the offence, or five years in the case of a juvenile offender (generally being a person under the age of 18 except in Queensland where it is under the age of 17).

The waiting period is intended to demonstrate that an individual has been of ‘good behaviour’ since being convicted.

An individual who is convicted of a further offence committed during the waiting period will generally lose the right to have the earlier conviction treated as spent until the waiting period for the later conviction is ended.

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When does an individual have a right not to disclose their conviction?

Broadly speaking, the Scheme gives an individual the right not to tell another person or authority about the existence of their spent conviction (a right of non-disclosure).

This includes the right to claim on oath that the individual was not charged with or convicted of the offence.

However, the right of non-disclosure is a limited right. As explained in the table below, whether an individual has the right to not disclose their conviction will vary according to whether the conviction was for a Commonwealth, state or foreign offence, and the location and nature of the person or authority that is receiving information about the individual’s conviction history.

These three factors determine the persons and authorities to which the individual is permitted to not disclose the existence of the spent conviction.

Table 1: Who can an individual not tell about their spent conviction?
Type of convictionRecipient located in Australian external territory or Jervis Bay Territory[1]Recipient located in State (including the ACT and Northern Territory)[2]Recipient located in Foreign country
Conviction for a Commonwealth offence or an offence of an Australian external territory or Jervis Bay Territory Any person Any person Commonwealth or state authority[3]
Conviction for a state offence (including ACT and Northern Territory offences) Any person Commonwealth authority Commonwealth authority
Conviction for a foreign offence Any person Commonwealth authority Commonwealth authority

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What obligations apply to persons and authorities that handle information about convictions?

It is unlawful for a person or authority to disclose an individual’s spent conviction or take it into account where the individual has a right of non-disclosure (that is, a right to not disclose the fact that they were charged with or convicted of the offence, as set out in Table 1 above).

In some circumstances the prohibitions on use and disclosure do not apply, for example those involving people who work with children (for more information, see discussion below).

Commonwealth convictions

Anyone who knows, or who could reasonably be expected to know, that a conviction in relation to a Commonwealth offence is spent, is prohibited from disclosing the fact that the individual was charged with, or convicted of, the offence to:

  • any other person (including a state or Commonwealth authority) in a state, Australian external territory or Jervis Bay Territory
  • a state or Commonwealth authority in a foreign country.

State convictions

Anyone who knows, or who could reasonably be expected to know, that a conviction for a state offence (including a conviction under an ACT or Northern Territory law) is spent, is prohibited from disclosing the fact that the individual was charged with, or convicted of, the offence to:

  • any other person (including a state or Commonwealth authority) in an Australian external territory or Jervis Bay Territory
  • a Commonwealth authority in a state or foreign country.

Foreign convictions

Anyone who knows, or who could reasonably be expected to know, that a conviction for an offence of another country is spent, is prohibited from disclosing the fact that the individual was charged with, or convicted of, the offence to:

  • any other person (including a state or Commonwealth authority) in an Australian external territory or the Jervis Bay Territory
  • a Commonwealth authority in a state or foreign country.

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When must a spent conviction not be taken into account?

Where an individual has a right not to disclose the existence of a spent conviction in particular circumstances or for a particular purpose, anyone else who knows or could reasonably be expected to know that the conviction is spent cannot take account of it in those circumstances or for that purpose.

For example, where an individual inadvertently discloses information about a conviction during an interview, in circumstances where they have a right not to disclose that information, the Scheme would prevent the authority from using that information in assessing the individual’s eligibility for employment, unless an exclusion applies.

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Obligations related to quashed convictions and pardons

Similar obligations apply in relation to quashed or pardoned convictions. However, there is no restriction on the types of convictions that may be quashed or pardoned (including more serious convictions, where the individual was sentenced to imprisonment for more than 30 months). Additionally, the waiting period does not apply to quashed or pardoned convictions.

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If the individual consents to having their spent, quashed or pardoned conviction (or the fact that they were charged with the offence) disclosed, the prohibitions described above will not apply.

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Exclusions

In some cases an individual will not have a right to withhold information about a conviction that otherwise meets the requirements to be spent.

Similarly, some persons and authorities are permitted to request, disclose and take information on spent convictions into account in limited circumstances.

The most important exclusion from the Scheme enables a person who is assessing an individual’s suitability to work with children to obtain, disclose and use information about that individual’s spent conviction.

Other important exclusions relate to:

  • law enforcement agencies for the purpose of:
    • making decisions in relation to prosecution or sentencing matters
    • assessing prospective employees and consultants
    • making certain disclosures to another law enforcement agency
  • AUSTRAC and intelligence or security agencies, for the purpose of assessing prospective employees and consultants
  • courts or tribunals making  decisions, including sentencing decisions
  • a person who makes a decision under the Australian Citizenship Act 2007 or the Migration Act 1958.[4]

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Interaction with the Privacy Act

Entities that are subject to the Privacy Act 1988 must also ensure that they comply with their obligations under the Privacy Act when handling information about individuals’ criminal convictions, for example, in relation to keeping the information secure and up to date.

Authorities and persons who are not covered by the Privacy Act will still be subject to the provisions of Part VIIC; for example, small business operators.

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What happens if someone has not complied with the Scheme?

An individual who believes that a person or a Commonwealth or state authority has breached the provisions of Part VIIC can complain to the Office of the Australian Information Commissioner.

In addition the Australian Human Rights Commission can investigate a complaint about discrimination in employment based on a criminal record.

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Commonwealth spent convictions scheme: A step-by-step guide

Flowchart: Commonwealth spent convictions scheme: A step-by-step guide. Link to long text description follows image.

Long text description

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For further information

telephone: 1300 363 992
email: enquiries@oaic.gov.au
write: GPO Box 5218, Sydney NSW 2001

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Footnotes

[1] For further information on Australian Territories please see http://www.regional.gov.au/territories/ .

[2] For clarity – offices of Commonwealth authorities are usually located in a ‘state’ (for these purposes including the ACT or NT).

[3] Commonwealth authority includes a Commonwealth Minister, Commonwealth Department Commonwealth statutory office, body or tribunal, the Defence Force, a federal court, the Supreme Court of the ACT and the Australian Federal Police. A similar definition applies in relation to State authorities.

[4] For detailed information about exclusions see Part VIIC, Division 6 of the Crimes Act 1914 and Regulations 7A and 8 and Schedule 3 of the Crimes Regulations 1990.

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Long text description for the Commonwealth spent convictions scheme: A step-by-step guide flow chart

The diagram is a flow chart illustrating a step-by-step process for determining whether the spent conviction provisions outlined in Part VIIC of the Crimes Act 1914 (Part VIIC) apply to a conviction.

The process is made up of a series of questions. Each of the questions, and the possible answers to those questions, are set out below in sequential order. The answers to these questions will determine whether the provisions in Part VIIC apply to the conviction.

1. Is the conviction ‘spent’?

To determine whether an individual’s conviction is ‘spent’ within the meaning of Part VIIC, ask the following two questions:

  • Was the individual sentenced to imprisonment for 30 months or less, or not at all?
  • Has the waiting period expired (the waiting period is ten years from the date of conviction, or five years in the case of juvenile offenders)?

If the answer to both of these questions is yes, then the conviction is likely to be ‘spent’ within the meaning of Part VIIC. If the answer is yes, go to question 2.

If the answer to both these questions is no, the conviction is not a spent conviction and, therefore, the provisions of Part VIIC may not apply.

2. What is the nature of the offence?

Is the conviction for an offence of:

3. Where would the disclosure take place?

  1. If the conviction is for a state (including the ACT and the Northern Territory) or foreign offence, ask whether the disclosure would take place in:
    • a state (including the ACT and the Northern Territory) or a foreign country? If the answer is yes, go to question 4(a).
    • an external territory or the Jervis Bay territory? If the answer is yes, the provisions of Part VIIC apply to the conviction and anyone who knows, or who could reasonably be expected to know, that the conviction is spent must not disclose or take account of the fact that the person was charged with, or convicted of the offence in those circumstances.
  2. If the conviction is for a Commonwealth, external territory or Jervis Bay Territory offence, ask whether the disclosure would take place in:
    • a state (including the ACT and the Northern Territory), an external territory or the Jervis Bay Territory? If the answer is yes, the provisions of Part VIIC apply to the conviction and anyone who knows, or who could reasonably be expected to know, that the conviction is spent must not disclose or take account of the fact that the person was charged with, or convicted of the offence in those circumstances.
    • a foreign country? If the answer is yes, go to question 4(b).

4. Who would the information be disclosed to?

  1. If the conviction was for a state (including the ACT and the Northern Territory) or foreign offence and the disclosure would take place in a state (including the ACT and the Northern Territory) or a foreign country, ask whether the information would be disclosed to:
    • a person other than a Commonwealth authority? If the answer is yes, the provisions of Part VIIC will not apply to the conviction.
    • a Commonwealth authority? If the answer is yes, the provisions of Part VIIC apply to the conviction and anyone who knows, or who could reasonably be expected to know, that the conviction is spent must not disclose or take account of the fact that the person was charged with, or convicted of the offence in those circumstances.
  2. If the conviction was for a Commonwealth, external territory or Jervis Bay Territory offence and the disclosure would take place in a foreign country, ask whether the information would be disclosed to:
    • a Commonwealth or state (including the ACT and the Northern Territory) authority? If the answer is yes, the provisions of Part VIIC apply to the conviction and anyone who knows, or who could reasonably be expected to know, that the conviction is spent must not disclose or take account of the fact that the person was charged with, or convicted of the offence in those circumstances.
    • a person other than a Commonwealth or state (including the ACT and the Northern Territory) authority? If the answer is yes, the provisions of Part VIIC will not apply to the conviction.

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