A criminal conviction is something that can generally impact on your ability to gain employment and travel overseas. Although not many are aware, generally, a convicted person is not required to disclose, for any purpose, any information about his or her conviction, if that conviction is “spent”.

In addition to this, a question concerning your criminal history is taken to refer only to any convictions which are not “spent”. These provisions are expressed in section 12 of the Criminal Records Act 1991 (NSW).

When is a Conviction “Spent”?

You will not be required to disclose any information to anyone about your conviction if it is considered “spent”.

A conviction will be considered “spent” if:

  • It has been at least 10 years since you received that conviction; and
  • During that 10 year period, you have not been convicted of an offence punishable by imprisonment; and
  • During that 10 year period, you have not been in prison from a conviction for any offence, and, you have not been unlawfully at large.

The above is expressed under sections 8 and 9 of the Criminal Records Act 1991 (NSW).

You are not required to disclose any information to any person about your conviction, if any of the following circumstances apply to you:

  • Where your offence is proven, or your found guilty for an offence, but the Court gives you a non-conviction for it without imposing any conditions; or
  • At the completion of any conditions, such as the expiration of a good behaviour bond, or any other conditions imposed by a court where:
    • Your offence was proven, or you were found guilty of an offence, but the Court gave you a non-conviction for it; or
  • Right after the court administers a caution dismissing the charge in the Children’s Court; or
  • Right after the offence (which you were convicted for) has ceased to be an offence by operation of law.

Which Convictions are Not Capable of Being “Spent”?

Section 7 of the Criminal Records Act 1991 (NSW) says that all convictions are capable of becoming spent (where you will thereafter not be required to disclose information about it to anyone), except for the following types of convictions:

  • Convictions where you received a prison sentence of more than 6 months (this does not include an intensive corrections order);
  • Convictions imposed against bodies corporate;
  • Certain convictions prescribed by the regulation;
  • Convictions for sexual offences.

Convictions for sexual offences includes the following offences:

  • Sexual assault, indecent assault, act of indecency or any attempt to commit either of these offences;
  • Sexual intercourse or attempt to do this with a child between 10 and 16 years of age;
  • Persistent sexual abuse of child, or procuring or grooming child under 16 for unlawful sexual activity;
  • Sexual offences against a person with cognitive impairment;
  • Filming person engaged in private acts; filming a person’s private parts, or installing device to facilitate the observation, or filming offences;
  • Sexual intercourse with child between 16 and 18 under special care;
  • Incest and attempts to incest. This includes sexual intercourse with a close family member above the age of 16 years i.e. parent, son, daughter, sibling (includes half brother or half sister), grandparent or grandchild, being such a family member from birth;
  • Bestiality or an attempt to commit bestiality;
  • Promoting or engaging in acts of child prostitution, or obtaining benefit from this, or using premises for child prostitution;
  • Child abuse material;
  • Any offence committed that is of similar nature to those noted above, even if it was committed outside NSW.

For form information on sexual offences, see penalties and defences for sexual offences.

Are “Spent” Convictions Allowed to be Disclosed?

It is a criminal offence for a person who has access to your “spent conviction”, to disclose it to anyone else without lawful authority. This is found in section 13 of the Criminal Records Act 1991 (NSW).

A breach of this, carries a penalty of up to $5,500 and/or 6 months term of imprisonment.

Circumstances Where “Spent Convictions” Can be Disclosed

There are exceptions to the prohibition of disclosing “spent convictions”. It is not an offence to disclose a person’s “spent conviction” in the following circumstances:

  • It’s not an offence for an officer in charge of the Criminal Records Section of the NSW Police Force to make information regarding a spent conviction available to a law enforcement agency, or to the holder of an office prescribed by the regulations. A law enforcement agency includes NSW Police Force, Australian Federal Police, police force of another State or Territory, The Independent Commission Against Corruption or a similar body established under the law of another legislature in Australia. The balance of the list can be seen in section 13 of the Criminal Records Act 1991 (NSW).
  • It’s not an offence for an archive or library to make available to a member of the public, or to another archive or library, in accordance with the normal procedures of the archive or library, material that is normally available for public use and that contains information relating to a spent conviction.
  • It’s not an offence for a law enforcement agency, in the discharge of its role, to make information regarding a spent conviction available to another law enforcement agency, or to a court, in compliance with an order of the court.
  • It’s not an offence for a person to make information in relation to a spent conviction available in accordance with sections 33, 34 or 40A of the Child Protection (Working with Children) Act 2012.
  • It’s not an offence for a public authority or other government agency that has a record of a spent conviction, to make information about it available to the person who was convicted.

AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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