Spent Convictions in South Australia
A spent conviction is a conviction that does not have to be disclosed and will not show on a police 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. In South Australia, the Spent Convictions Act 2009 sets out the law on when a conviction is spent.
Offences for which a conviction may become spent are those for which a sentence of imprisonment was not given or a sentence of imprisonment for less than one year (for an adult) or two 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 five years (unless they were dealt with as an adult) and for an adult it 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.
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 and offences committed by persons over 16 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 and if an application is refused, another application cannot be made for two years.
A conviction can also be spent if the behaviour is no longer a criminal offence.
The magistrate who considers the application must have regard to all of the circumstances and of the people involved and any probable consequences of spending the conviction before making an order.
There are some exceptions to the law on spent convictions. These are situations where a conviction must be disclosed even though it is spent. These situations are set out in full in Schedule 1 of the Act.
Spent convictions 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 information about a person’s spent convictions. These include the 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.
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 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 a 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.
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