Spent Convictions and Background Checks - Criminal Defence Lawyers Australia

Share This Article

Table Of Contents

Key Takeaway
Spent Convictions NSW
How Can I Check my Criminal Record Online?
Removing Criminal Records and How to Know if your Conviction is ‘Spent’
How Long Does a Criminal Record Last?
Can Traffic Offence Convictions Become ‘Spent’?
Outcomes of Charges That Will Not Form Part of Your Criminal Record

Key Takeaway

Can a criminal record be cleared in Australia? Yes, a criminal record can be cleared in Australia if the crime-free period for certain criminal offences is complete. If so, the conviction will then be considered ‘spent’, and it will no longer form part of a person’s criminal record, subject to exceptions under the Criminal Records Act 1991 (NSW). The law in NSW recognises that some criminal convictions should not remain a black mark on a person’s life if that person completes the period of crime-free behaviour.

Spent Convictions NSW

How long does a criminal record last in NSW?

All criminal convictions are generally capable of becoming ‘spent’. If a conviction relating to a previously committed criminal offence is ‘spent’, it will mean that you will not be required to disclose it to anyone if ever asked on any document or verbally. This is also referred to as the spent conviction scheme concerning spent convictions in Australia.

It also means, that any questions about your criminal history will be taken to refer only to your prior convictions which are not ‘spent’.

If your previous conviction is now considered ‘spent’, where you’ve applied for an application under the law, a reference to your character or fitness is to not to consider ‘spent’ convictions.

How long before a conviction is spent?

For example, if you have a criminal record for committing a crime in the past, if that conviction is now ‘spent’, you can reply ‘no’ to any question you’re asked to whether or not you have a criminal conviction.

This law says this is section 12 Criminal Record Act 1991(NSW) (CRA).

How Long Does A Criminal Record Last in New South Wales?

Is my criminal record spent? In New South Wales, a criminal record lasts for up to 10-years for most criminal offences provided you complete the crime-free behaviour period.

How Can I Check my Criminal Record Online?

There are multiple sources to check your criminal record via agencies online. You can lodge a police check application online to obtain your record. You may do this via the ‘National Crime Check’ online page, or you can apply online for a national police certificate from NSW Police Force through service NSW. You may require a police criminal record check online for employment, students placements, visas, adoption, admissions as a lawyer or volunteer in an aged care facility.

To be eligible to apply for a national police check certificate, through the Service NSW website online, you must be aged at least 14-years when applying and a permanent resident of NSW. If you live outside NSW, you can still apply for this in your state or territory. When applying, you will need an email account to receive verification codes and proof of ID documents.

When applying online, you may need a name, date of birth and fingerprint check as well. If so, you will receive an email letting you know of this with a request that you attend your local police station to have your fingerprints taken.

If you are applying for a criminal record check online for Australian citizenship, spouse visa, residency, working visa, while travelling or residing overseas, or guardianship of a child from another country, you must apply online through the Australia Federal Police website here.

What are the Fees for a National Police Check?

The fee for a national police check is $42 per national police check application from a government department or an individual. There is also, if required, a cost of $99 for a fingerprint and national police check application (only applies if fingerprints are supplied to the AFP upon an application). The cost will be $139 for fingerprint and National Police Check applications if fingerprints are taken and processed by the AFP.

Removing Criminal Records and How to Know if your Conviction is ‘Spent’

Here we answer common questions around how long does a criminal record last, and how to get a spent conviction removed. Your conviction will be spent when the relevant crime-free period expires, according to section 8 CRA. This means, that your conviction will be spent upon the expiry of the 10-year period from the date of your last conviction, provided that during that 10-year period, you have not been convicted of an offence that carries an imprisonment penalty and you have not been in prison because of a conviction for any offence (and have not been unlawfully at large).

Other circumstances your conviction will be spent include any of the following:

Section 10 non-conviction without a good behaviour bond, even after pleading guilty.
At the completion of a good behaviour bond or intervention program or other such conditions imposed by the court under a non-conviction sentence such as section 10 with a good behaviour bond or a s32 mental health application (now referred to as a s14 application).
An offence dealt with by the children’s Court where the court dismissed the charge with a caution. It will be ‘spent’ upon the expiration upon the administration of the caution.

As for children court matters, the crime-free period is 3-years. The order will be ‘spent’ if during the 3-year period from the date of the last order, there have been no control orders, the person has not been convicted of an offence which carries an imprisonment penalty, and has not been in prison because of a conviction for any offence (and has not been unlawfully at large).

How Long Does a Criminal Record Last?

How Long Does A Criminal Record Last?
How long does a criminal record last in New South Wales?	10 years
How long does a criminal record last in Victoria?	10 years for indictable offences (more serious offences) 5 years for summary offences (less serious offences)
How long does a criminal record last in Queensland?	10 years
How long does a criminal record last in Western Australia?	10-years for ‘lesser convictions’ that carry a max penalty of one year in jail. For ‘serious convictions’ (more serious offences) you must apply to the District Court to get it ‘spent’.
How long does a criminal record last in South Australia?	10 years

Exceptions: When Spent Convictions Must Be Disclosed

A previous criminal conviction, even if ‘spent’, still must be disclosed in any of the following circumstances, under section 15 and 16 CRA:

Applications to be appointed a Judge, Magistrate, lawyer, justice of the peace, police officer, Corrective Services NSW, the Office of the Sheriff, teacher, or Department of Communities and Justice (DOCs).
If you’re subject to a risk assessment or applying for clearance for a Working With Children Check.
Applications for employment in fire-fighting or fire prevention, only if the conviction is for an arson offence.
In court proceedings i.e. if you are being sentenced for a current offence or if you are giving evidence in a case.

Exceptions: Convictions that are Incapable of Becoming ‘Spent’

An offence you’ve been sentenced to imprisonment of more than 6 months.
Sexual offences
Bodies corporate convictions

Can Traffic Offence Convictions Become ‘Spent’?

Traffic offence convictions that carry penalties of imprisonment can also be spent in the same way as non-traffic offence convictions.

If you have been convicted or imprisoned for a traffic offence, the traffic offence conviction will not be taken into account when calculating the crime-free period for a non-traffic offence conviction.

A traffic offence conviction will only be taken into account in calculating the crime-free period for an earlier traffic offence conviction.

For example 1: If you are convicted for a domestic violence assault, and then later, but within 10-years of that conviction, you are convicted of drink driving, then the drink driving conviction will not be counted in calculating the crime-free period from the date of the domestic violence assault conviction.

Example 2: On the other hand, if you’re convicted for a drink driving offence, and then later, but within 10-years from that conviction, you’re convicted of a domestic violence assault offence, then the domestic violence assault conviction will not be counted in calculating the crime-free period from the date of the drink driving conviction.

The exception to this rule, is for certain types of traffic offence convictions. This means, that the following traffic offence convictions will be counted in calculating the crime-free period for any conviction, regardless of whether it is a traffic offence or non-traffic offence):

Dangerous driving occasioning death or grievous bodily harm.
Aggravated dangerous driving occasioning death or grievous bodily harm
Injury by furious driving.
Manslaughter or causing grievous bodily harm arising from the use of a motor vehicle or trailer.
Culpable driving.

Outcomes of Charges That Will Not Form Part of Your Criminal Record

If you’re charged with a criminal offence, and the charge is dismissed either because you are found ‘not guilty’; the charge is dropped early by police, or the charge is dismissed under section 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (previously known as s32), then the charge will not form part of your criminal record.

Regarding Children Court cases, if a charge is dismissed by the Children’s Court even after a finding of guilt, then the offence will not form part of your criminal record.

Questions? Contact our criminal lawyers Sydney branch for a confidential discussion.

Published on 18/08/2021