In South Australia, the Spent Convictions Act 2009 sets out the law on when a conviction is not disclosed on your criminal record. A spent conviction is a conviction that can’t be disclosed and will not show on a police record check. A conviction is spent immediately if a court finds an offence proved or a defendant guilty but orders that no conviction is recorded against them. Otherwise, it can be spent if the conviction is pardoned or quashed, or the qualification period has lapsed.
Qualification periods
Offences for which a conviction may become spent are those for which a sentence of imprisonment was not given or a sentence of less than 1 year (for an adult) or 2 years (for a juvenile) was given, provided there has been no re-offending during the relevant qualification period. For a juvenile, the qualification period is 5 years (unless they were dealt with as an adult) and for an adult is 10 years. If an offence is committed during the qualification period (this does not include an offence where the only penalty was a fine of $500.00 or less), then the counting of time will start again. Once the conviction is spent, it can’t be revived unless a further offence is committed during the qualification period.
Eligibility
A conviction of a body corporate cannot be spent. A conviction for a sex offence can only be spent if it is an eligible offence and a magistrate orders that it is spent. These include sex offences where no period of imprisonment is imposed, or an offence committed by adults engaging in consensual sexual intercourse. No convictions can be spent during the time that a person has to report under the Child Sex Offenders Registration Act 2006.
If a person is convicted of an offence in another state or territory of Australia it will be spent in South Australia under the rules that would apply in the convicting state. If the conviction was imposed overseas, it will be considered as if it were a conviction for a similar offence in South Australia. The conviction is immediately spent if there is no similar offence.
Orders for eligible sex offences
An application to have a spent conviction for an eligible sex offence cannot be made until after the end of the qualification period. It can only be made in respect of a conviction imposed in South Australia. If an application is refused, another application cannot be made for 2 years. A conviction can be spent if the behaviour is no longer an offence according to law. Otherwise, the behaviour must have been consensual and the penalty received cannot have been a jail sentence. If it was a same sex offence and involved acts that would have been legal if the persons were not of the same sex then it is eligible. Otherwise, everyone must have been over the age of 16 years and none of them in a position of authority in relation to the other. The magistrate who considers the application must have regard to all of the circumstances of the offence and the people involved and any probable consequences of spending the conviction before making an order.
Exceptions
There are some exceptions which will still require the disclosure of a spent conviction. They are set out in full in Schedule 1 of the Act. They may be taken into account if a person is applying for some types of licences, accreditations or professional registrations. There are exclusions for some employment positions and for several categories of employment. Persons who apply for these positions may have to declare all of their convictions, or their convictions for some categories of offences.
Some agencies are also able to access the information. These include police, the parole board, immigration authorities and intelligence and security agencies. The exclusions may not apply if the conviction is immediately spent or has been quashed or the person has been granted a pardon for the offence or if an application has been granted by a magistrate. Applications can only be made in respect of exclusions relating to the care of children or vulnerable people and those associated with character tests. The enforcement of any breaches of court orders (including fines) or any disqualifications or demerit points imposed are not affected.
Commonwealth offences
The qualification periods which must be completed for Commonwealth offences before they become spent are the same as for those offences which are under South Australian law. The Crimes Act 1914 allows for convictions that have been set aside or pardoned to be spent. Convictions can also be spent if the person was sentenced to less than 30 months jail. A person whose conviction is spent doesn’t have to disclose the conviction to any person or authority unless there is an exclusion under that Act. Exclusions are limited to specific organisations needing to know about particular offences for specific purposes. An example is where a person is applying for a position involving the care and control of children, the employer can find out about any convictions where the victim was a child. Breaches of these laws are dealt with by the Information Commissioner.
Unlawfully disclosing spent convictions
It is an offence for person who has access to records of convictions to disclose information about a spent conviction if they know, or should know, that the information is about a spent conviction. The maximum penalty is a $10,000.00 fine. It is a defence if the convicted offender agreed to it being disclosed, if the disclosure started before the conviction was spent, or if the person who made the disclosure honestly believed that the disclosure was lawful.
