Spent Conviction Scheme - Clearing Your Criminal Record

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McMahon Criminal Defence Lawyers have navigating the complexities of the Spent Convictions Scheme.

We understand that a criminal record can be a significant hurdle in life, which is why we offer a service in advising and drafting applications to have criminal convictions removed from your record. With our expertise and personalised approach, we’re committed to helping you clear your name and secure a brighter future.

Feel free read the following information and get in contact for an appointment to discuss making your application.

General
What is a criminal record?
What is a conviction?
Convictions before 1 December 2021
Application to a court for a conviction to be spent
Effect of a spent conviction
How to make sure an old conviction has been spent
Exceptions for administration of justice
- Some permitted disclosures
Misuse of spent conviction information
More information

General

Once a conviction becomes spent, it no longer forms part of the person’s criminal record. Aside from a narrow set of circumstances a person will generally not have to disclose it. This gives people clarity about when a criminal record will be released. See permitted disclosures.

See ss. 7, 8, 20, Part 2, Division 2—Spent Convictions Act 2021 (Vic).

What is a criminal record?

A criminal record is a document produced by a law enforcement agency that sets out a person’s convictions.

See s. 3—Spent Convictions Act 2021 (Vic).

What is a conviction?

A conviction is a finding of guilt made by a court for an offence. It includes findings of guilt whether or not they are recorded as a conviction, and includes both summary, indictable offences; and infringement convictions.

A finding of guilt includes a qualified finding of guilt under the Crimes (Mental Impairment and Unfitness to be Tried Act 1997 (Vic) (CIMA) or a finding of guilty under an interstate or foreign law that corresponds to (CIMA).

An offence includes any foreign or interstate offence, which had it been committed in Victoria would have been an offence against this state.

See s. 5—Spent Convictions Act 2021 (Vic).

Convictions before 1 December 2021

Convictions recorded before the commencement of the Act, will be included in this scheme. This means the law applies retrospectively to old convictions.

See s. 6—Spent Convictions Act 2021 (Vic).

Which convictions are immediately spent?

Findings of guilt by a court, and infringement convictions are spent on the day the person is convicted. These are called immediately spent convictions, or convictions spent with immediate effect. These are convictions, whether recorded in Victoria, interstate or internationally where:
If a finding of guilt is made but a Court does not record a conviction (e.g. Section 76 Sentencing Act, proven without conviction)
Conviction is a qualified finding of guilt under the CIMA (or corresponding law)
The person was under 15 years old at the time they committed the offence (including serious convictions)
the only penalty was a fine in the Children’s Court (or equivalent)
</the penalty was an infringements conviction.*

*Infringement convictions are things like drink or drug driving or excessive speeding (that is, 25km/hr or more above the speed limit, or driving at more than 130km/hr in a 110km/hr zone) or drink driving while operating a boat.

See:

s. 7—Spent Convictions Act 2021 (Vic) and

s. 17(1)(c) and 38X(1)(c)—Crimes Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)

Objecting to an infringement conviction.

Exception where delay in immediate spent conviction

Where the court imposed conditions to the penalty, the conviction does not become spent until the person has fulfilled the condition requirements of the penalty.

* e.g, If the client has been given an adjourned undertaking, to be of good behaviour (Good behaviour bond) this may show up on their criminal record check. Once the adjourned undertaking period is complete and the conditions have been met then the conviction will be automatically spent.

See s. 7—Spent Convictions Act 2021 (Vic).

Spent conviction automatic provided no conviction / reoffending

A conviction will be spent automatically provided the person does not re-offend or is convicted* within the conviction period of either 10 years (Adults) or 5 years (Child or Young offenders 15-21 years). If they do, their time starts over again. Not all convictions are automatically spent. Serious convictions cannot be automatically spent.

*Presently, the Act does not make clear if the conviction period is restarted based on the date of the conviction or the date of the offence. This section will be updated once that issue has been addressed.

How long is the conviction period?

The conviction period is the amount of time needed to pass before a conviction is spent. This is calculated from the date that the court finds the person guilty of the offence that constitutes the conviction.

The conviction period is:

10 years where the offence was committed by an adult

5 years where the offence was committed by a child or eligible young offender.

See s. 9—Spent Convictions Act 2021 (Vic).

Who is considered to be a child or young offender?

15-18 years of age CYFA.

Young adults under 21 years of age.

A person will be considered to be a child if they were convicted under the Children Youth and Families Act 2005 or an equivalent Act (including similar interstate or overseas laws).

It also includes young offenders who are sentenced under the dual track system under the Sentencing Act 1991. This allows Victorian courts to sentence young adults under 21 to serve sentences in youth detention instead of adult prison. To qualify for this dual track system, the court must be convinced that the young offender has reasonable prospects of rehabilitation, or is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.

Note: A young offender must be no older than 20 at the time of the offence.

See s. 9—Spent Convictions Act 2021 (Vic) and s. 32—Sentencing Act 1991 (Vic).

What are serious convictions?

Serious convictions, those which are not spent automatically after the offender has served the conviction period, are convictions:

where detention of more than 30 months is imposed

for a sexual offence, or

for a serious violence offence.

What are sexual offences?

*Sexual offences have a very broad meaning and it is currently unclear how a finding of guilt for summary offences (e.g distribution of an intimate image) will be treated under the spent conviction scheme.

Sexual offences would include;

sexual assault

rape

any offence involving a person engaging in sexual activity

any offence involving taking part in a sexual act

sexual offences against children

offences for child abuse material

indecency offences

some offences relating to children taking part in sex work

distributing an intimate image of a person under 18 years (‘sexting’ offence)

Sexual offences are defined under s4 of the Criminal Procedure Act (2009) VIC

Section 4(b),(c),(d),(e) & (f)

(b) an offence an element of which involves—

(i) any person engaging in sexual activity; or

(ii) any person taking part in a sexual act; or

(iii) commercial sexual services; or

(iv) a sexual performance involving a child;

(i) an intention that any of the conduct referred to in paragraph (b) is to occur; or

(ii) soliciting, procuring, enabling or threatening any of the conduct referred to in paragraph (b); or

(iii) inducing or knowingly allowing a child to enter or remain on premises so that any of the conduct referred to in paragraph (b) may occur;

(d) an offence an element of which involves child abuse material;

(e) an offence an element of which involves indecency;

(f) an offence of attempting to commit, or of incitement or conspiracy to commit, an offence referred to in paragraph (a), (b), (c), (d) or (e);

What are serious violence offences?

The Act refers to the list of serious violence offences in Schedule 2 of the Serious Offenders Act 2018.

A ‘serious violence offence’ refers to several specific offences, including:

• murder

• manslaughter

• child homicide

• homicide – including defensive homicide, homicide by firearm

• causing serious injury intentionally, including in circumstances of gross violence

• causing serious injury recklessly, including in circumstances of gross violence

• kidnapping

• arson causing death.

Conspiracy, incitement or attempt to commit to any of the above offences will also meet the definition of a ‘serious violence offence’

See s. 3—Spent Convictions Act 2021 (Vic).

What happens if a person offends during the conviction period?

Note* The conviction period starts from the date of conviction, not the date the person is charged. The Spent Convictions Act does not expressly state that the further offence must have been committed during the conviction period. See example below.

If there are no pending offences:

If the person reoffends before their conviction period is up, that is they are convicted of another offence before the conviction period ends, the conviction period for the first conviction starts again. It starts from the date that the subsequent conviction is made.

For example, if an adult person is found guilty of an offence on 23 June 2018, their conviction would be due to end on 23 June 2028. If, however the person is convicted of another offence on 1 April 2021, their conviction period would not be due until 1 April 2031, provided they are not convicted of another offence during that time.

See s. 10—Spent Convictions Act 2021 (Vic).

Example: A is an adult.

Amy is charged with offence (1) on 15 Jan 2020

Amy is then charged with offence (2) on 20 Jan 2020

Amy is sentenced for offence (2) on 10 Feb 2021 which means Amy’s conviction will be automatically spent on 10 Feb 2031. But…..

Amy then decides not to contest offence (1) and plea date is set with the Court. Amy is ‘convicted’ on 1 March 2022, Amy’s conviction period now starts again and will end on 1 March 2032.

When conviction period will not restart

The conviction period will not be restarted if the subsequent conviction is:

a fine of less than 10 penalty units (or equivalent outside Victoria)

only penalty is to pay an amount of compensation or restitution

without penalty, or

no conviction is recorded by the court.

See s. 10(3)—Spent Convictions Act 2021 (Vic).

Application to a court for a conviction to be spent

The default commencement for Court ordered spent convictions is 1 July 2022.

What are Eligible Serious Convictions?

Applications can be made for a Serious Conviction if the person

a child or young offender

not a child or young offender but the offence was a serious violence or sexual offence and no imprisonment imposed, or

any term of imprisonment less than 5 years.

How, where & when are Applications made?

Application is made to Magistrates’ Court subject to the following conditions.

A person can apply for more than one conviction to be spent; but;

A person cannot apply until the day the conviction period expires for all offences;

If an application is rejected at first Application, a person must produce new supporting information if they wish to re-apply within 2 years of valid application being refused.

if the person has a disability, their appointed guardian may make an application on their behalf.

See Spent Convictions Act 2021 (Vic).

What needs to be included in your Application? – s12

S12 of the Act specifies that the Application must be in writing and set out:

Applicant’s full name

The conviction for which the order is sought

Information in support of the applicant’s rehabilitation

Any prescribed information.

Court may issue a written notice requiring an applicant to provide any further supporting information

Application must include any prescribed fee

The Court can refuse to accept Application it considers to be vexatious, misconceived or doesn’t comply with s 12

See s12 Spent Convictions Act 2021 (Vic).

What Factors does the Court use to decide – s19 of the Act

When exercising its discretion to make a spent conviction order, the court must consider:

the nature, circumstances and seriousness of the conviction offence

the impact on any victim of the offence

the applicant’s personal circumstances

for Aboriginal or Torres Strait Islander applicants, unique factors of their background affecting those persons including factors relating to their incarceration and

impacts on them of disclosure of a criminal record

the applicant’s age and maturity when the offence was committed

any demonstrated rehabilitation

any risk to public safety of making the order

any other matter that the Court considers relevant.

See, s19 Spent Convictions Act 2021 (Vic).

Effect of a spent conviction

Once a conviction is spent, it no longer forms part of the person’s criminal record. This means that the person is not required to disclose the existence of the conviction, or any information relating to that spent conviction to anyone else. People should not ask questions about spent convictions or questions related to the conviction once it is spent. There are offences for unlawful disclosure of spent convictions.

See ss. 20, 23—Spent Convictions Act 2021 (Vic).

How to make sure an old conviction has been spent

After the conviction period has passed without the person being convicted of another offence, the person’s conviction should automatically be removed from their record. This means that it will not show up on a person’s record unless an exception applies or for the purposes of the administration of justice.

The Act makes it clear that a person can request their own criminal record (including spent convictions) from a law enforcement agency, court or tribunal.

A law enforcement agency is defined in section 3 and includes Victoria and interstate and Federal police, Commissioner of Corrections, Director of Fines Victoria.

See ss. 21(3)—Spent Convictions Act 2021 (Vic).

Exceptions for administration of justice

There are exemptions that allow law enforcement agencies to disclose a spent conviction to specified persons or bodies if the recipient is getting the information for a specified purpose. People authorised to disclose and the purposes of disclosure are listed in Table 1 of the Act, which sits beneath section 22.

These specified bodies may disclose information relating to a spent conviction to:

a court or tribunal in the course of legal proceedings

pursuant to an order of a court or tribunal

to the extent reasonably required to enable the investigation or enforcement of law in Victoria or an interstate law

to an interstate police force

to a lawyer for the purpose of getting legal advice or representation

See ss. 21, 22—Spent Convictions Act 2021 (Vic) and Table 1—Spent Convictions Act 2021 (Vic).

Some permitted disclosures

These exemptions allow the agencies to make well-informed risk assessments. This includes licensing for trusted professions, checks for working with children and employment in certain government roles. Click here to see a full list. Of most relevance to VLA clients are:

Firearms

Courts

Visa Applications

working with children checks

employment of staff who work with children

employment of disability workers

registration and accreditation of health professionals

employment of staff working for Victoria Police

employment of staff at Court Services

admission of people to practice law

appointment of justices

employment of people working in corrections

administration and oversight of reportable conduct scheme

registration of marriage celebrants and ministers of religion.

For full details, see s. 22—Spent Convictions Act 2021 (Vic) and Table 1—Spent Convictions Act 2021 (Vic).

Misuse of spent conviction information

Unlawful to discriminate

From 1 December 2021, a spent conviction becomes a protected attribute for the purposes of the Equal Opportunity Act 2010(Vic). This makes it unlawful to discriminate against a person on the basis of a spent conviction. The bodies and purposes for which information about a spent conviction can be disclosed and used are set out in Table 1.

See s. 6(pb)—Equal Opportunity Act 2010 (Vic)

Access without authority

It is an offence for a person who has access to information that they know, or ought reasonably to know, is a spent conviction unless they have lawful authority or written consent to make the disclosure by the person whose conviction is spent.

It is a defence to a charge of unlawful disclosure if the person can show that they took all reasonable steps to avoid unlawful disclosure.

Maximum penalty is 40 penalty units.

See ss. 23, 24—Spent Convictions Act 2021 (Vic).

Exceptions

Staff including volunteers working in libraries and archives who are acting in the course of their usual employment or duties may disclose information that is available to the public or another library or archive. provided it is disclosed according to established procedures of that library or archive.

See s. 23(3)—Spent Convictions Act 2021 (Vic).

Obtaining spent conviction information by fraud

It is an offence to obtain information about a spent conviction by fraud or by using dishonest means.

The maximum penalty is 20 penalty units.

See s. 24—Spent Convictions Act 2021 (Vic).

More information

Department of Justice

Spent conviction scheme – info website

Legislation

Spent Convictions Act 2021 (Vic)

s. 3—defines ‘law enforcement agency’, ‘law enforcement function’, ‘interstate law’, ‘foreign law’, ‘infringement conviction’, ‘child’, ‘criminal record’, ‘serious conviction’, ‘serious violence offence’,