Criminal records


19.117 Criminal records and associated police records detail a young person’s contact with the criminal justice system. They can have significant effects in a child’s later life. Criminal records can be retained and follow the child into adulthood or they can lapse upon the child’s majority or after a certain time.[193]


19.118 The view that a child’s criminal record should lapse recognises that most children ‘grow out’ of crime and should not be branded in adulthood by youthful mistakes. A submission made to the Inquiry summarised this view.

This provision appropriately reflects the reality of youth offending — that most youth do not continue criminal behaviour into their adult lives, that the maintenance of a criminal record incurred as a youth stigmatises the young offender, and this stigmatisation could drive them further into criminality.[194]

19.119 The prejudice which a criminal record carries has an enormous impact on a young person, particularly in relation to employment prospects.

Once you have a criminal record and the police know they treat you like shit. The[y] never believe [what] you say and always go against you.[195]

I was given a second chance, and yes, I believe I deserve it! I deserved to be punished — which I was — but I don’t think it should hamper my future job.[196]

A criminal record at a young age could ruin their life.[197]

19.120 Submissions generally agreed that young people convicted of criminal offences should only carry a criminal record for the most serious types of offences. Submissions also emphasised the importance of limiting the period of time for which criminal records of juvenile offenders can be retained. Some favoured expunging the record when the child reaches the age of 18; others preferred deletion after a specified period such as two or three years where no further offences have been committed in that time.[198] One submission argued that young people should be made aware that any conviction for a criminal offence may be expunged after a period of time. ‘Youths need to know that offences committed whilst a youth have a use by date…’.[199]

19.121 Recent amendments to Queensland’s juvenile justice legislation are likely to cause more children to make the transition to adulthood with an established criminal record. A new section provides that particular cautions and community conference agreements are retained and admissible as part of a person’s criminal history.[200] In both written submissions and public hearings great concern was expressed at the amendments.[201]

19.122 Some State and Territory laws limit the imposition or retention of criminal records in relation to children. Some protection is provided by the spent convictions provisions in Part VIIC of the Crimes Act. This law does not affect the recording of criminal convictions. It protects people by giving them the right not to disclose spent convictions under certain circumstances. It also prohibits individuals and organisations from taking into account certain spent convictions or disclosing them to other people. A spent conviction is a conviction for a federal, Territory, State or foreign offence which meets all of the following conditions.

    • Ten or more years must have passed in the case of adults and five or more years in the case of juvenile offenders.

    • The sentence imposed (not the sentence served) must have been a prison sentence of 30 months or less, a fine, bond or community service order.

    • The person has not committed another offence in the last ten year period for adult offenders or five year period for juvenile offenders, subject to some exceptions.

    • None of the specified exclusions applies. Where an exclusion is specified, information about the spent conviction can be requested and taken into account. The exclusions include courts when making decisions on matters such as sentencing offenders and law enforcement agencies when making decisions about whether to prosecute.

19.123 DRP 3 proposed that criminal convictions of young offenders should be expunged after a period of two years, or when the young person attains the age of eighteen years, whichever is the earlier, except where further convictions have been recorded.[202] It also proposed that police records of young offenders should be retained for five years then automatically destroyed where no further offence has occurred.[203] The AFP’s submission was generally supportive of the draft recommendations regarding retention of criminal records and favoured a system along the lines of the federal spent convictions provisions.[204] The Northern Territory Government in its submission noted that the Criminal Records (Spent Convictions) Act 1992 (NT) provides that convictions for some less serious offenders expire after five years in the case of persons convicted in the Juvenile Courts, and after ten years for a conviction recorded as an adult.[205] The Education Centre Against Violence supported the recommendation but suggested that convictions and records of juveniles who have committed sexual offences should be retained because of the ‘highly repetitive nature of this class of offences and the general resistance to treatment’.[206] The Inquiry agrees with this and recognises that there are some classes of exceptions to the principle that juvenile criminal records should lapse.

19.124 Any expungement of criminal records for young offenders should be subject to appropriate exclusions. The exclusions which apply in the federal spent convictions legislation provide some useful guidance on this issue, although they should not necessarily be the same. Sexual offending is one area where it may be appropriate to impose more rigorous requirements, given the serious consequences and the likelihood of re-offending.

19.125 The federal spent convictions legislation plays an important role in protecting the rights of people who have offended against the law. However, its main focus is on non-disclosure of information about convictions rather than expungement as such from the records of the relevant authorities. Expungement is necessary to ensure that young people are not stigmatised by aberrant youthful offending.

Police records

19.126 Retention of police records is also a concern for young offenders. Police generally retain a record of a young offender’s contact with the police and courts even when no conviction is recorded or no formal record is kept. This internal police record assists police to determine appropriate action to be taken in relation to the child in any future dealings with him or her. The record cannot be used in sentencing for further offences or in any other way adverse to the child. However, submissions expressed concern about the adverse effect on children’s future prospects of retaining police records indefinitely. Most agreed that police records should be retained only for a limited period. There is already some provision for this in State and Territory legislation. In New South Wales, for example, the Children’s Court may order destruction of a range of records including photographs, fingerprints and any other prescribed records other than records of the Children’s Court.[207] Presumably, ‘other prescribed records’ would include such things as records of official cautions. Submissions expressed concern that the requirements concerning destruction of police records of juvenile offenders, where they exist, should be properly enforced.[208]

19.127 A submission from the AFP opposed the proposal in DRP 3 for the automatic destruction of police records after five years. The AFP preferred a system for police records based on similar principles to those which apply to convictions under the Commonwealth spent convictions legislation. This would include appropriate requirements regarding non-disclosure of this type of information.[209]However, the stigmatisation of a criminal record is not restricted to the public arena. If police records are retained, they will undoubtedly affect police decision making in later contacts with the young person. The Inquiry recognises that police need access to information about potential offenders in their investigations. However, the patterns of youth offending mean that most young offenders do not re-offend. Young people who have not re-offended within five years are unlikely to offend again. Subject to the same exceptions noted at paras 19.122-124, the utility of retaining police records is outweighed, after five years, by the need to allow a young person who has not re-offended, to outgrow his or her record.

Recommendation 253 Criminal convictions of young offenders should be expunged after a period of two years or when the young person attains the age of eighteen years, whichever is earlier, except where further convictions have been recorded. Exceptions to this requirement may be appropriate in relation to particularly serious offences, some sexual offences and certain other categories.

Implementation. The Attorney-General through SCAG should encourage the implementation of this recommendation, including development of appropriate exceptions, in all Australian jurisdictions.

Recommendation 254 Police records of young offenders should be retained for five years and then destroyed where no further offence has occurred and subject to the same exceptions noted at recommendation 253.

Implementation. The Attorney-General through SCAG should encourage the implementation of this recommendation in all Australian jurisdictions.

[193] eg Children (Criminal Proceedings) Act 1987 (NSW) s 14; Criminal Records Act 1991 (NSW); Young Offenders Act 1994 (WA) s 55; Juvenile Justice Act 1983 (NT) s 89; Criminal Records (Spent Convictions) Act 1992 (NT) s 6; Juvenile Justice Act 1992 (Qld) s 124. Each of these statutes to varying degrees limits the imposition or retention of a criminal record in relation to children.

[194] SA Dept of Family and Community Services IP Submission 110.

[195] Survey Response 335.

[196] Survey Response 71.

[197] Survey Response 99.

[198] eg E C Orr IP Submission 91 favoured destruction of records when the child reaches the age of 18; Australian Association of Social Workers IP Submission 207 favoured retention of criminal records for a maximum period of two years from the last conviction.

[199] Youth Court of SA IP Submission 100.

[200] Juvenile Justice Legislation Amendment Act 1996 (Qld) s 41 inserted a new s 114A into the Juvenile Justice Act 1992 (Qld). See paras 18.39, 18.49, 19.51.

[201] Youth Advocacy Centre IP Submission 120; Townsville Community Legal Service IP Submission 181; Church Network for Youth Justice IP Submission 212; S Harris, Co-ordinator Youth and Community Combined Action Public Hearing Submission Rockhampton 1 August 1996.

[202] Draft rec 11.3.

[203] ibid.

[204] DRP Submission 66.

[205] NT Government DRP Submission 71. See also Criminal Records (Spent Convictions) Act 1992 (NT) s 6.

[206] Education Centre Against Violence DRP Submission 43.

[207] Children (Criminal Proceedings) Act 1987 (NSW) s 38. This is mandatory in respect of a finding of not guilty or if the court dismisses the charge and discretionary with regard to other circumstances.

[208] Youth Advocacy Centre IP Submission 120.

[209] AFP DRP Submission 66.