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Laws that regulate criminal record expungement
Spent convictions legislation can be challenging to understand. In New South Wales (NSW), criminal record expungement is governed by the Criminal Records Act 1991. This legislation establishes a framework aimed at mitigating the impact of minor convictions on individuals who demonstrate a period of crime-free behaviour. Upon successful completion of this prescribed period, the conviction is deemed “spent” and, with certain exceptions, is not included in the individual’s criminal history.
The expungement scheme is part of New South Wales’s striving to make sure the community understand that rehabilitation is the most important part of the criminal justice system. They want to make it clear that a past criminal conviction and the subsequent criminal record that an individual has does not affect their future.
The law aims to find a middle ground between keeping the public safe and helping individuals rehabilitate and reintegrate into society. This means that by having a spent conviction status, the legal system is trying to be fair and make sure the justice system in NSW treats everyone equally.
Criminal Justice A
Understanding the Spent Convictions Scheme
The Spent Convictions Scheme in New South Wales explained in Section 8 of the Criminal Records Act 1991 (CRA), is a way for people to clear their criminal record after a certain period without committing more crimes. This is commonly known as the “Spent Convictions Scheme of Australia” and applies the same way across all of Australia.
In New South Wales, the waiting time, or ‘crime-free period,’ depends on whether someone was treated as an adult or a minor. For adults, it’s generally ten years, and for minors, it’s five years. There’s also a three-year waiting period in NSW. If someone commits another crime during this waiting time, the clock starts over, highlighting the importance of good behaviour. Note that this is different to a Section 10 removal of a criminal record.
This scheme covers all kinds of offences – not just criminal offences – but those like drink driving, domestic incidents, or public order offences. To be eligible, certain conditions must be met, including getting a pardon for reasons not related to a “wrongful conviction,” serving a sentence of no more than 30 months (Commonwealth), and completing the assigned ‘good behaviour’ or waiting period without getting into more trouble.
Importantly, the spent conviction status doesn’t happen automatically; it depends on meeting these conditions. Once they’re met, the relevant conviction, whether for a traffic offence or any other, is officially labelled as “Spent” after the waiting period. This legal system aims to balance public safety and the rehabilitation of individuals into society, supporting the goal of a fair and just criminal justice system in New South Wales.
Conditions for the Scheme
Initially, the nature of the offence, whether it’s drunk driving, domestic, public, or any other, does not impact the eligibility for the spent conviction status. However, before a conviction can be considered spent, specific conditions must be met:
Pardon for Reasons Other Than “Wrongful Conviction”: To be eligible for the spent conviction status, the individual must have received a pardon, but this pardon must be granted for reasons unrelated to a “wrongful conviction.”
Maximum Jail Sentence of 30 Months (Commonwealth): Another condition is that the person should not have been sentenced to more than 30 months in jail, specifically under Commonwealth laws.
Completion of “Good Behavior” or Waiting Period Without Another Conviction: The individual must complete the designated ‘good behaviour’ or waiting period without incurring any additional convictions.
If a criminal conviction meets all of these criteria, it will be officially marked as ‘conviction spent’ under the spent convictions scheme.
Exceptions to a spent conviction
Under NSW law, most convictions have the potential to become spent, meaning they no longer need to be disclosed in certain situations. However, as the criminal justice agency in charge of the national police check has pointed out, there are exceptions to this rule. Let’s break down each exception:
Convictions with Prison Sentences Exceeding 6 Months: Criminal convictions that include sentences of more than 6 months in prison cannot be wiped from an individual’s criminal record and subsequently will remain a part of someone’s criminal history. Generally speaking, this means that if the individual is facing a serious conviction for something severe, then they will not be able to have their criminal offences wiped from the system.
Convictions for Sexual Offences: Convictions for a sexual offence are not eligible to become spent under NSW legislation. This ensures that the seriousness of a sexual offence is not diminished and that relevant parties are aware of an individual’s history in these cases.
Convictions Against Companies and Corporate Bodies: Unlike convictions against individuals, convictions against companies and other corporate bodies cannot become spent. This ensures accountability and transparency in the business sector.
Convictions Prescribed by Regulators: Certain convictions may be specifically prescribed by regulators, meaning they are not eligible to become spent. This could include convictions related to regulatory offences or offences deemed particularly relevant within specific industries or contexts.
It’s important to note that if a conviction is considered spent, the individual is not obligated to disclose information about it to anyone for any purpose. However, these exceptions ensure that certain types of convictions retain their significance and are not overlooked in relevant contexts.
So, how long before a person's criminal record can become a spent conviction?
A conviction is typically considered spent either upon the completion of a specified crime-free period or immediately under certain circumstances. For instance, if an offence is proved or a person is found guilty without resulting in a conviction, the conviction is immediately spent. In the Children’s Court, an order for dismissal with a caution means the conviction is spent after the caution is given.
Similarly, if an offender is released on a good behaviour bond or participates in an intervention program, the conviction becomes spent when the specified period passes or conditions are met. Additionally, convictions become spent immediately if the law changes, rendering the offence no longer punishable. The crime-free period for most convictions is at least 10 consecutive years, while in the Children’s Court, it’s a minimum of 3 consecutive years. During this time, the individual must avoid further convictions punishable by prison and must not have been imprisoned or unlawfully at large.
Will a spent conviction ever be made public?
Yes, a spent conviction can become known in specific situations, particularly when applying for certain jobs that require national police screening. Australian law mandates this requirement in various sectors such as working with children, vulnerable groups (like the elderly or disabled), healthcare, public transport, rescue services, government roles, and careers involving firearms.
Even if a conviction has been officially spent and removed from a general police check certificate, it may still be disclosed in these sectors during the screening process. In these cases, the spent conviction is not treated as confidential, ensuring transparency and safety in roles that involve sensitive responsibilities or potential risks to the public. Contact Jameson Law today for any questions about the situation in which a record may become public.
The protection of your information
In straightforward terms, your information about spent convictions is protected by law. No individual or agency can access your criminal records to see spent convictions, and cannot disclose this information without your consent. They cannot use it to assess your eligibility for employment or other purposes if you have a right to non-disclosure unless specific exclusions apply.
If an organization is covered by the Privacy Act, it must adhere to its regulations when handling information about your criminal record. Attempting to fraudulently or dishonestly obtain such information is a criminal offence under the Criminal Records Act 1991 (NSW), carrying a maximum penalty of $5500 or imprisonment for 6 months, or both. If you think you have been the victim of a miscarriage of justice, Seek legal advice today and contact Jameson Law for your best chance of protecting your rights!
FAQs
In Australia, the term "expunge" is generally used less than 'spent convictions' A spent conviction means that, after a specified crime-free period, the conviction is considered spent and generally does not need to be disclosed in certain situations. To achieve this, individuals must meet specific eligibility criteria, and the process varies based on the jurisdiction and the nature of the offence.
While not a complete erasure, a spent conviction provides an opportunity for rehabilitation by mitigating the long-term impact of a past conviction. Consultation with legal professionals, like those at Jameson Law, can guide individuals through the process of achieving a spent conviction based on their specific circumstances.
In many cases, a spent conviction will not appear on a standard police clearance or criminal record check. The purpose of a spent conviction is to allow individuals to move forward without the burden of their past mistakes affecting their opportunities indefinitely. However, there are exceptions, and certain sectors or roles, such as those involving work with vulnerable populations or national security, may still have access to spent convictions. It's essential to understand the specific regulations in your jurisdiction and the nature of the clearance being requested to determine whether a spent conviction will be disclosed.
No, a criminal record doesn't automatically get wiped at 18 in Australia. Youth records persist into adulthood, appearing on adult criminal history checks. Erasure occurs if the individual qualifies for specific legal schemes outlined by legislation upon reaching adulthood. However, severe offences or those ineligible for special schemes remain on adult records for life.
