Spent Conviction (Qld)

A spent conviction is a conviction which has lapsed after a specified period of time, which means it is no longer on the person’s criminal record. A spent conviction does not appear on a police check, and in most cases, a person does not have to reveal the conviction if asked. The person is also able to claim under oath that they do not have the conviction. Spent convictions are governed by the Criminal Law (Rehabilitation of Offenders) Act 1986.

Convictions that can become spent

A conviction that is set aside or quashed does not form not part of a person’s criminal history.

A conviction becomes spent after a specified “rehabilitation period”. If the person was convicted in the Supreme Court or the District Court, and was an adult, the rehabilitation period is 10 years from the date the conviction was recorded. In all other cases, including when the person was convicted as a juvenile, the rehabilitation period is 5 years.

A person can deny under oath or affirmation that they have a conviction if the sentence related to conviction was non-custodial or if the term of imprisonment was 30 months or less.

Disclosure

A person cannot be forced to disclose, for any purpose, a conviction that is not part of their criminal history, or someone’s else’s criminal history, or any charge made against themselves or anyone else. There are some exceptions.

Section 6 of the Act states a person’s spent conviction cannot be disclosed by that person or anyone else unless:

• the person chooses to disclose it;
• it is disclosed under the authority of a permit;
• disclosure is required by law, such as when the person applies for employment in a specified profession or to hold a specific office.

Under section 9, a person or authority who is assessing someone’s fitness to be admitted to a profession or job must not take into account a spent conviction unless:

• the person being assessed must disclose it by law;
• the person or authority making the assessment must take it into account;
• the person being assessed is not relieved from the responsibility to disclose it.

A person can apply for a permit that allows them to ask another person to disclose any spent conviction. The permit will be granted if the applicant is deemed to have a “legitimate and sufficient purpose” for asking for the disclosure.

Under the Act, a person who discloses information about a spent conviction, without the consent of the convicted person or without legal authority, commits an offence and is liable to a maximum penalty of 100 penalty units ($13,345).

Special cases

Section 9A list the positions, offices and statuses that require a person to disclose their criminal history and any spent convictions. The list includes:

• police officers;
• justices of the peace;
• teachers;
• security guards;
• brothel licensees;
• lawyers;
• election candidates.

Revival of convictions

If a person is convicted of an offence during the rehabilitation period for another offence, the period automatically restarts and any part of the period that had elapsed is disregarded. If a person is convicted of an offence after the rehabilitation period for another offence, that rehabilitation period is revived. These laws do not apply to a simple offence, only a serious offence.

Commonwealth spent convictions

Convictions for some offences committed under Commonwealth laws can also become spent. Under the Crimes Act 1914, a person’s conviction is spent if:

• the person has been granted a pardon for a reason other than a wrongful conviction;
• the sentence related to conviction was non-custodial or if the term of imprisonment was 30 months or less.

If a person has a spent conviction for a Commonwealth offence, they are not required to disclose this fact to anyone, for any reason, in any Australian state or territory, or in a foreign country. The same applies to a spent conviction for a foreign offence (an offence against a foreign law).

The Act also allows, in some circumstances, the convicted person to deny under oath or affirmation that they have been convicted of an offence. It also bans anyone who knows of another person’s spent conviction to disclose that conviction to any person or State or Commonwealth authority, without the convicted person’s consent.

For a Commonwealth offence, the rehabilitation period is called the “waiting period”. If the person is convicted as a minor, the waiting period is 5 years from the day of conviction. In any other case, the waiting period is 10 years. If a person commits another offence during the waiting period, a court can restart the waiting period from the date of conviction for the later offence.

For advice or representation in any legal matter, please contact Armstrong Legal.