Spent Convictions Act 2021

Recently, Victoria introduced legislation, the Spent Convictions Act 2021 (‘the Act’), to allow convictions to become spent in its jurisdiction. This legislation was eagerly awaited and takes steps toward a more just system that removes long-standing bias and discrimination for those who have rehabilitated and seek to fully reintegrate themselves into society with equal opportunity in areas of employment, for example. A spent conviction is a conviction that no longer appears on a criminal record and, therefore, no longer needs to be disclosed (s 20). A conviction under the Act includes a finding of guilt made by a court, whether or not a conviction is formally recorded (s 5). Therefore, when we talk about convictions under the Act, we refer to both findings of guilt and formally recorded convictions.  

How does a conviction become spent?

Some convictions are immediately spent, whereas others only become spent after a set period of time or upon application to the court. We will explain.

When does a conviction become immediately spent?

A conviction will become immediately spent in Victoria in any of the following situations (s 7):

• When a conviction is not recorded by the court;
• When the conviction relates to a child convicted of an offence under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;
• When the conviction (including a serious conviction) relates to an offence committed by a person who was under the age of 15 at the time of the offending;
• When the conviction is recorded in the Children’s Court and the only penalty imposed is a fine; and
• When the conviction relates to an infringement matter only.

When does a conviction become spent after a set period of time?

The Act sets out how long a conviction must remain in place when a conviction is recorded; this is known as the ‘conviction period’ (s 8). The conviction period varies depending on whether you were a child, young offender or adult when the conviction was recorded.

If you were a child or young offender, meaning under the age of 21 when the conviction was recorded, the conviction period is 5 years. This means that after 5 years if there has been no further conviction recorded against you during that period of time, the conviction will automatically become spent without you having to do a thing. However, if you were an adult at the time of the conviction, then you must complete a period of 10 years without further convictions being recorded for the conviction to become spent automatically.

The clock starts ticking on the conviction period from the day the court records a finding of guilty or conviction against you. If a further conviction is recorded during the conviction period, the clock will re-start from the date of the latest conviction, unless (s 10):

• The only penalty imposed for the further offending is a fine not exceeding 10 penalty units; or
• The only penalty imposed for the further offending is an order to pay restitution or compensation; or
• There is no penalty imposed upon a finding of guilt; or
• The court does not record a conviction for the offending.

It is important to note that if the conviction is a serious conviction, it will not automatically become spent after the expiry of the conviction period.

What is a serious conviction?

A serious conviction is (s 3):

• A conviction for which a term of imprisonment or detention of more than 30 months is imposed; or
• A conviction for a sexual offence; or
• A conviction for a serious violent offence.

A sexual offence is defined under the Criminal Procedure Act 2009, and a serious violent offence is defined under the Serious Offenders Act 2018. If you are unsure whether your conviction is a serious conviction or not, we suggest making an appointment with one of our solicitors at LWA.

When is an application to the court required?

You may make an application to the Magistrates’ Court of Victoria for your conviction to be spent in the following circumstances whether you were a child, young offender or adult at the time of the conviction (s 11):

• If the conviction relates to a serious violent offence or sexual offence, but no term of imprisonment was imposed for that conviction; or
• In relation to any other conviction, if the term of imprisonment imposed was not more than 5 years.

You must wait until the end of the conviction period before making an application to the court for a spent conviction.

If an application for a spent conviction is refused, you must wait 2 years before applying again unless there is new information to be provided to the court.

How do I apply for a spent conviction?

Firstly, you will need to apply for a national police check through Victoria Police, which can be done online. Once received, you can apply to the Magistrates’ Court of Victoria for a spent conviction order by completing the Application form. Contact our office and speak to one of our lawyers today to assist you in making an application, as it is important to attach all information and material relevant to the application and serve it to all relevant parties.

Are there convictions that can never become spent?

A conviction can never be spent if it relates to:

• A conviction for a serious violent offence or sexual offence where a term of imprisonment (of any length) was imposed; and
• A conviction for any other offence where the term of imprisonment imposed is more than 5 years.

There are exceptions if the conviction relates to an offence committed by a person who was under the age of 15 at the time of the offence.

Will my employer know about my spent conviction?

Usually, you are not required to disclose to anyone, including your employer, that you have a spent conviction. However, there are some exceptions when spent convictions are included in police checks for employment, registration or licensing by the following agencies:

• The Department of Justice and Community Safety;
• Australian Health Practitioner Regulation Agency;
• Disability Worker Registration Board of Victoria;
• Court Services Victoria; and
• Victoria Police for both employment and firearms licensing.

If you are concerned about this, check the Table set out under s 22 of the Act or make an appointment with one of our lawyers.

Will my spent conviction affect my driving record?

If the conviction is related to a driving offence and the conviction is now spent, it will not appear on your criminal record. However, a driver history report issued by VicRoads is different to a criminal record issued by Victoria Police. A driver history report will display all driving offences, including offences that now relate to spent convictions. If you are facing new driving charges, it is important to be legally represented, as your solicitor will ensure that any spent convictions recorded on a driver history report will be addressed.

Is it an offence to access someone’s spent conviction record?

The Act makes it an offence for a person to access conviction records in relation to a person’s spent conviction without lawful authority or written consent by that person (s 23) and for spent convictions information relating to spent convictions to be obtained fraudulently or dishonestly (s 24).