How Do Spent Convictions Work In Australia?

Punishment and rehabilitation go hand in hand under Australian law. Once a convict has served his sentence, his debt to society has been paid, and he or she is entitled and encouraged to lead a normal life. In real life though, even when a felon has cleared their debt to society, they will carry the stigma of being an ex-convict, which will impact their chances of getting a decent job and leading a normal life. The Spent Convictions scheme was created with this in mind.

What is the Spent Convictions scheme 

Under the Spent Convictions scheme, ex-felons can see their convictions erased from their criminal record after a certain period of time has passed.  

In practical terms, this means that any time an ex-felon needs to undergo a criminal background check, for employment purposes for instance, a spent conviction will no longer appear in their criminal record.  

The Australian national police check will come back clean and as far as the employer is concerned the job applicant in front of him has never set foot in jail. This is huge in terms of employment perspectives.

How does the Spent Convictions scheme work? 

Under Commonwealth legislation, there is a so-called waiting period before a conviction becomes spent. 

For adults, the waiting period is 10 years. 

For juvenile defendants, the waiting period is only 5 years. 

The waiting period starts from the moment the defendant was found guilty in a court of law. 

Not all convictions can become spent in Australian states and Territories. The scheme was devised for minor offences, for which a prison term of no more than 30 months was imposed. Sentences for which no period of imprisonment was imposed also qualify for the Spent Convictions scheme. For a conviction to become spent, the ex-felon must take care not to get in trouble again and commit another offence during the waiting period. 

The scheme is automatic, which means the spent conviction will no longer appear on their criminal record without the concerned individuals having to do anything. 

Keep in mind this is Commonwealth law, but the various Australian states and territories have their own Spent Convictions legislation. If in doubt as to which legislation applies in your case, seek legal advice.

Exemptions to the rule 

The Spent Convictions scheme does not apply when you undergo a Working With Children Check to obtain a Blue Permit allowing you to work in any position requiring interaction with underage children. In this case, all convictions, spent or not, will be released during a background check. The same goes for pre-employment checks necessary when you want to get a job in the healthcare system, or in a facility caring for the aged or disabled. 

At the same time, spent convictions will be released if you apply for a job related to the legal system, including the prison system, as well as for jobs that have to do with national security.

Do you have to disclose a spent conviction? 

No, once your conviction has become spent you don’t have to tell a prospective employer about that and they certainly aren’t allowed to ask about such a thing. Remember that they have no legal way of finding out about your spent conviction. If they somehow manage to obtain such confidential information that is a criminal offence, punishable by law with heavy fines and possibly a prison sentence in some cases.