Spent convictions

The inquiry on spent convictions examined the question of whether criminal records should be deleted after specified time periods had elapsed.

The Commission identified three related problems that affected former offenders:

1. the extent to which members of the community could access information about criminal records;
2. the extent to which access was being granted to that information and the purposes that the information was being used for; and
3. the way that the law placed restrictions on former offenders.

A conviction could prevent someone from holding a political office, from pursuing an activity for which a licence was necessary or from practising a profession or trade. The policy considerations in favour of allowing former offenders to become part of the community needed to be balanced with competing considerations, such as open access to information; the claim of governments and law enforcement agencies to use the best methods available to prevent and detect criminal activity and to apprehend offenders; the interest in being able to make informed judgments possible about admission to professional practice, occupation or trade, appointment and employment; the interest in efficient and fair administration of justice; and the interests of victims.

A Discussion Paper, Criminal Records (ALRC DP 25), was produced in 1985 and the final report Spent Convictions (ALRC Report 37) was tabled in June 1987.

Key recommendations

ALRC Report 37 recommended that a conviction be regarded as spent if a specified period has elapsed and there have been no serious convictions in that time. For adults, the period would be 10 years; for juveniles it would be two years.

The report’s recommendations have two main objectives:

1. minimising the negative consequences that may attach to spent convictions; and
2. making it unlawful to discriminate unreasonably against a person on the basis of a spent conviction.

The first objective could be achieved by a ‘Spent Conviction Scheme’. Legislation enacted under this scheme would state that a spent conviction is not generally to be taken into account when interpreting statutes and when assessing the rights, entitlements or liabilities of a former offender.

The second objective may be achieved by bringing discrimination on the basis of spent convictions within the responsibilities of the Human Rights and Equal Opportunity Commission.

In addition, a Commonwealth statute should be enacted making it unlawful to discriminate on the basis of spent convictions in areas relating to employment, in the provision of goods, services, and in the availability of facilities. The Commission envisaged that in certain circumstances, general and specific exemptions would be granted.

It was also recommended that a task force be commissioned to develop rules controlling criminal record keeping and checking on a national basis.

Although the focus of the reference was on Commonwealth laws and practices, the Commission recommended that the States and Territories be encouraged to adopt a similar approach.

Implementation

Crimes Legislation Amendment Act 1989 (Cth)

In June 1989, the Crimes Legislation Amendment Act 1989 (Cth) was passed, implementing proposals developed by the Standing Committee of Attorneys-General and closely based on the recommendations of ALRC Report 37. The legislation enacted departs from the Commission’s recommendations in two aspects: the good behaviour period for a juvenile offender has been extended from the two years recommended by the Commission to five years; and the scheme does not apply to all convictions but only to cases where the sentence imposed was a fine, bond, community service or imprisonment for a period of less than 30 months.

Commonwealth Spent Convictions Scheme

The Commonwealth Spent Convictions Scheme came into force on 30 June 1990 under Part VIIC of the Crimes Act 1914 (Cth).

Model Spent Convictions Bill

In ALRC Report 37, the ALRC recommended that a Commonwealth statute should be enacted making it unlawful to discriminate on the basis of spent convictions in areas relating to employment, in the provision of goods, services, and in the availability of facilities. Although the focus of the reference was on Commonwealth laws and practices, the Commission recommended that the states and territories be encouraged to adopt a similar approach.

A Communique following the Standing Committee of Attorneys-General (SCAG) meeting on 5 and 6 November 2009 reported that SCAG’s work on a nationally consistent spend convictions scheme was finalised with the public release of a Model Spent Convictions Bill.