If you have been convicted of a criminal offence, then the conviction will be disclosed on your criminal record when you undertake a police criminal history check (also known as a police clearance).
However, did you know that certain convictions are eligible to become “spent” and will no longer be disclosed on a police criminal check?
When does my conviction become ‘spent’?
The Spent Convictions Act 2009 (SA) details whether or not certain convictions will become spent and how that will occur.
Your adult conviction will become spent after a qualification period of 10 years from the date of your sentencing if your conviction was:
- for a period of less than 12 months imprisonment; or
- for a penalty other than imprisonment; and
- not a sex-related offence.
It should be noted that any subsequent offence committed during this 10-year period will result in the qualification period starting over again.
Spent convictions for sex-related offences
If you have been convicted of a sex-related offence, it is only eligible to become spent if you were not given a prison sentence.
Unlike other offences, which automatically become spent, you will need to make an application to the Court. This application should be lodged after the 10-year qualification period has elapsed.
Spent convictions for juvenile offences
Juvenile non-sex related offences imposing imprisonment of less than 24 months are eligible to become spent after a qualification period of 5 years.
Exclusions to spent convictions being disclosed
While spent convictions may be removed from a police criminal check, there are exclusions for situations where a spent conviction must still be disclosed.
This includes disclosure in relation to:
- Justice and Commonwealth agencies (for example if you are undertaking an Auscheck);
- Designated judicial authorities;
- The Parole Board;
- Judicial and associated officers;
- Care of children and vulnerable people;
- Character tests;
- Firefighting, police and correctional services; and
- Screening units.
This means that when a person is facing another criminal charge, details of their past convictions will appear on their criminal history record and will be disclosed to the court even though those convictions may have become automatically spent.
Application to prevent disclosure of a spent conviction
An application can be made by a person to prevent disclosure of a spent conviction when they are applying for certain employment positions involving:
- the care of children or vulnerable people;
- a character test; or
- where the conviction was a sex-related offence.
The is known as an application for an exemption order.
A Magistrate will then consider and determine the application. They have the discretion whether to grant your application and will take into account various factors related to the offence, along with the public interest and anything else deemed relevant.
If your application is rejected, you must wait a further 2 years to apply again.
If you need legal assistance and advice for a spent conviction, contact our Criminal Law team for clear and concise advice about your rights and the best way forward.