Information about your criminal record is sensitive information under the Privacy Act 1988. The Commonwealth Spent Convictions Scheme may also protect it under the Crimes Act 1914.
What is the Commonwealth Spent Convictions Scheme?
The Commonwealth Spent Convictions Scheme (Scheme) allows an individual not to disclose a conviction for a less serious offence after a period of good behaviour, and prohibits unauthorised use and disclosure of information about this conviction. The Scheme also covers pardons and quashed convictions.
There are some exclusions to the Scheme. If an exclusion applies, an individual doesn’t have the right to withhold information about a conviction that would otherwise be spent. (The Office of the Australian Information Commissioner advises the Attorney-General about exclusions under the Scheme.)
A conviction for a state or territory offence may also be covered by a spent conviction scheme in the relevant state or territory.
What convictions does the Scheme cover?
The Scheme covers a conviction for a less serious federal, state, territory or foreign offence when one of the following applies:
- the conviction is spent
- the individual has been granted a pardon because they were wrongly convicted
- the conviction has been quashed.
When is a conviction spent?
Under the Scheme a conviction is spent if an individual:
- has been granted a pardon for a reason other than they were wrongly convicted of the offence, or
- 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.
What is the waiting period?
The waiting period is 10 years beginning on the day of conviction, or 5 years for a juvenile offender. It’s intended to show an individual’s good behaviour since being convicted.
An individual convicted of a further offence committed during the waiting period will generally lose the right to have the earlier conviction treated as spent.
The waiting period does not apply to pardoned or quashed convictions.
Your right to non-disclosure
The Scheme generally gives you the right to not tell another individual or authority about your spent, pardoned or quashed conviction, whether it’s a federal, state or territory, or foreign offence. This is called a ‘right to non-disclosure’. It includes the right to claim on oath that you were not charged with or convicted of the offence.
An authority is an Australian Government agency or a state agency.
How information about spent convictions must be handled
It is against the law for an individual or agency to disclose information about a spent, pardoned or quashed conviction where the individual concerned has a right to non-disclosure. Unless an exclusion applies.
Likewise, an individual or agency can’t take into account information about a spent, pardoned or quashed conviction if the individual concerned has a right to non-disclosure. For example, if you inadvertently disclose information about a conviction during a job interview when you have a right not to, the information can’t be used to assess your eligibility for employment, unless an exclusion for a spent conviction applies.
If you consent to having your spent conviction disclosed, these requirements don’t apply.
If the Privacy Act covers an organisation or agency, then they must follow the Privacy Act when handling information about your criminal record. The Privacy Act covers Australian Government agencies and organisations with an annual turnover of more than $3 million, and some other organisations.
There are some situations where your right to non-disclosure doesn’t apply.
Someone who is assessing another individual’s suitability to work with children may get to use and disclose information about the individual’s spent conviction.
A law enforcement agency may disclose or take into account a spent conviction to:
- decide a prosecution or sentencing matter (for example, a court)
- assess a prospective employee or consultant (for example, AUSTRAC, an intelligence or security agency)
- make certain disclosures to another law enforcement agency.
An exclusion also applies when an individual makes a decision under the Australian Citizenship Act 2007 or the Migration Act 1958.
If you think there’s been a breach of the Scheme, you can lodge a complaint with us
If you think you’ve suffered employment discrimination because of your criminal record, contact the Australian Human Rights Commission