Criminal Records and Spent Convictions

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Obtaining a copy of your Criminal Record

The Criminal Records Section (CRS) forms part of the Forensic Services Group, Identification Services Branch of the NSW Police and is responsible for the collection, integrity and release of criminal record information in NSW.

Forms can be obtained from:
Level B3 NSW Police Headquarters
1 Charles St
Parramatta NSW 2150

Or downloaded from their website:
http://www.police.nsw.gov.au/about_us/structure/specialist_operations/forensic_services/criminal_records_section 

What is a spent conviction?

The Criminal Records Act places limits on how long information about a person's convictions can be used. The Act provides for a crime free period after which most minor offences will be treated as spent. Once a conviction is spent the person concerned is not obliged to disclose it, for example, when applying for employment, insurance, credit or when completing an application for a statutory licence (for example, licences for security agents or commercial agents). There are however, some exceptions to this rule for:

  • some kind of convictions, and/or
  • some types of employment applications

Which convictions?

All convictions are capable of becoming spent except:

  • where a prison sentence of more than 6 months has been imposed (periodic or home detention is not considered a prison sentence)
  • convictions against companies and other corporate bodies
  • convictions identified by regulations made under the Act (no offences have been prescribed to date), and
  • a large number of offences defined by the Act as sexual offences. These include the Crimes Act offences of sexual assault, indecent assault, sexual intercourse and acts of indecency with children and minors, incest, child prostitution and child pornography offences as well as the offence of obscene exposure under the Summary Offences Act. Attempting, conspiring or inciting the commission of these offences are also included.

Overseas, federal and interstate convictions receive similar treatment to New South Wales convictions. They can become spent in New South Wales provided they do not fall into the above categories. Separate federal legislation covers federal offences and the treatment of all convictions by federal agencies.

Crime free periods

For adults the crime free period is ten years from the date of conviction and for child offenders the period is reduced to three years.

Traffic offences

Traffic offences, excluding the more serious offences covered in Part 3 Division 6 of the Crimes Act where injury or death has occurred, are treated separately from non-traffic offences. Convictions for traffic offences do not interrupt the crime free period required for non-traffic offences and vice-versa.

Discharges without conviction

The Act applies to discharge orders made under the old section 556A of the Crimes Act or the newer section 10 of the Crimes (Sentencing Procedure) Act 1999. These sections give courts the power to discharge a person without conviction even when an offence has been proved. Usually these findings will be spent as soon as the order is made or once any bond, recognisance or period of probation expires. In other words, it is not necessary to wait the 10 year crime free period referred to above.

Because discharges without conviction are defined as convictions for the purpose of the Act they are subject to the same exceptions as other convictions. For example, a discharge without conviction for a sexual offence (as defined in the Criminal Records Act) will never become spent. In addition all discharge orders are relevant to applications for positions set out in the next paragraph.

Cases where spent convictions do not apply

The spent conviction provisions do not apply to appointments to legal offices (Judges, Magistrates, JPs), or for employment as police officers, prison officers, teachers, teacher's aides or providers of child care services. Section 192B of the Medical Practice Act 1992 suspends this immediate crime free period in the case of offences by Doctors which are investigated as misconduct.

Legal proceedings are also exempt, so that a person may still have to answer questions about earlier convictions under cross-examination. Spent convictions will be considered when a court comes to sentence a person for a later offence.

A number of legislative provisions passed since the Criminal Records Act modify the spent conviction provisions either explicitly or by implication.

Juvenile offences

The Act makes special provisions for convictions recorded in the Children's Court. The crime free period is reduced to three years and may be interrupted by control orders as well as convictions. Discharge orders made by the Children's Court are treated similarly to discharges without conviction (see above). The obligation of children to disclose information may also be affected by provisions of the Children (Criminal Proceedings) Act 1987 which provide for court orders to destroy charge records.

Further effects of spent convictions

If a question is asked relating to a person's criminal history the person is entitled to answer it without referring to spent convictions. When a question as to a person's fitness or character arises in legal context (other than in court), spent convictions are not to be considered relevant, such as in some licence applications. However, the benefits in the Act do not explicitly apply to questions about charges. The Act may not stop a person being asked whether he or she has ever been charged, even where the charges have been withdrawn or dismissed.

Penalties and enforcement

There are penalties for unauthorised release of information on spent convictions and for fraudulently or dishonestly obtaining this information. They do not apply where the information is provided to a law enforcement agency, or a court. This means that a lawyer can obtain the criminal record of a witness or party to court proceedings through subpoena.

Also information on spent convictions which is recorded in a library or archive can be disclosed without penalty.

Getting old and minor criminal records removed

The Criminal Records Act does not mean that records of spent convictions will be deleted. The NSW Police Criminal Records Unit retains information on all charges, court appearances and convictions. Except in the case of some juvenile records in the Children's Court these records are not automatically destroyed when the convictions they relate to are spent.

Further information

Further information and advice on criminal records can be provided by Martin Bullock Lawyers.

You can also contact Privacy NSW on (02) 9228 8585. Information about the separate legal provisions covering Commonwealth offences and the use of criminal records by Commonwealth bodies can be obtained from the Office of the Federal Privacy Commissioner on 1300 363 992.