Leslie Massey
In Western Australia, a spent conviction refers to a criminal conviction that is no longer disclosed on a person's record after a specified period of time. The Spent Convictions Act 1988 allows individuals to apply to the Commissioner of Police or the District Court to have their conviction spent, encouraging rehabilitation and providing a second chance for those with minor criminal histories. The Act defines two types of convictions: lesser convictions, which result in imprisonment of one year or less or a fine under $15,000, and serious convictions, which can include imprisonment or more severe penalties. While spent convictions remain part of an individual's criminal history and may be considered in specific circumstances, they generally do not need to be disclosed to employers or other organisations, offering a path towards social reintegration.
| Characteristics | Values |
|---|---|
| Purpose | To encourage offenders to rehabilitate themselves and refrain from further unlawful conduct |
| Scope | Does not include offences sentenced to life imprisonment |
| Types of convictions | Lesser convictions (imprisonment of 1 year or less or a fine of less than $15,000) and serious convictions |
| Application process | File a Notice of Motion, an affidavit, criminal history, and supporting references or reports |
| Application frequency | Must wait 2 years before re-applying if the application is refused |
| Disclosure | Generally not required to disclose spent convictions, but some exceptions apply |
| Impact on criminal record | Remains part of an individual's private criminal record kept by the police but will not appear on a National Police Certificate |
| Consideration in decision-making | May be considered by police and courts when determining bail or sentencing |
| Discrimination protection | It is generally against the law for employers, unions, associations, licensing boards, or professional regulators to discriminate based on spent convictions |
| Qualifying period | Varies depending on the jurisdiction and severity of the crime, typically ranging from three to ten years |
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What You'll Learn
What is the Spent Convictions Act 1988?
The Spent Convictions Act 1988 (WA) is legislation that allows people with previous convictions to have their records cleared under certain conditions. The Act applies to people who have been convicted of an offence against the law in Western Australia or a foreign country and have not reoffended during a specified period, demonstrating rehabilitation. The purpose of the Act is to encourage rehabilitation and reduce the legal and social stigma associated with convictions. It provides incentives for offenders to refrain from further unlawful conduct.
The Spent Convictions Act 1988 defines two types of convictions: lesser convictions and serious convictions. Lesser convictions carry a sentence of imprisonment for one year or less or a fine of less than $15,000. Serious convictions result in imprisonment for more than one year or an indeterminate period or a fine of $15,000 or more. The application process for spending convictions involves filing a Notice of Motion, an affidavit, criminal history, and supporting references or reports. A District Court Judge has the authority to declare a conviction as spent.
For lesser convictions, individuals must apply to the Commissioner of Police to have their conviction spent. After the prescribed period for the conviction has expired, the Commissioner is required to issue a certificate confirming that the conviction is spent. The prescribed period is generally 10 years plus the term of imprisonment, unless specified exceptions apply. It's important to note that if an individual with a lesser conviction incurs a serious conviction or a life sentence, their lesser conviction becomes a serious conviction.
Serious convictions require an application to the District Court, and the prescribed period for these convictions must also expire before applying. At the time of sentencing, the Court may make a "spent conviction order" under the Sentencing Act 1995 (WA) in alignment with the Spent Convictions Act 1988. Spent convictions remain part of an individual's private criminal record and can be considered by police or courts when deciding on bail or sentencing. However, they do not appear as disclosable convictions on a National Police Certificate.
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How to apply for a spent conviction
In Western Australia, a person convicted of an offence may be entitled to have that conviction spent under the Spent Convictions Act 1988. The purpose of the Act is to encourage rehabilitation and refrainment from further unlawful conduct.
The Act defines two types of convictions: lesser convictions and serious convictions. Lesser convictions are those with a sentence of imprisonment for one year or less or a fine of less than $15,000. Serious convictions carry a penalty of more than one year of imprisonment or a fine of $15,000 or more. It is important to note that convictions for life imprisonment cannot be spent.
To apply for a spent conviction, there are a few methods available:
- National Police Certificate Application: This method automatically includes a request for any eligible WA convictions to be spent. The WA Police Force will review the convictions and their eligibility under the Spent Convictions Act 1988. There is a fee for obtaining a National Police Certificate.
- Separate Spent Conviction Application: This can be done without obtaining a National Police Certificate. The application form can be downloaded from the Western Australian Police Force website. There is no fee for this option, but you will not receive a copy of your National Police Certificate.
- Application to the District Court: For serious convictions, an application can be made to the District Court after a certain waiting period, usually 10 years plus the length of the term of imprisonment imposed. The first step is to file a Notice of Motion, an affidavit, criminal history, and any supporting references or reports. The Judge may consider various factors when deciding to declare a conviction spent and is not bound by the rules of evidence.
It is important to note that even if a conviction is spent, it remains part of an individual's private criminal record kept by the police and can be considered when determining bail or sentencing. Additionally, there are certain situations where spent convictions must still be disclosed, such as when applying for an Australian visa or a Working with Children Check.
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Disclosure of spent convictions
In Western Australia, a spent conviction refers to a conviction that has been effectively wiped from a person's record following a period of rehabilitation and non-offending. The Spent Convictions Act 1988 (WA) allows individuals who have been convicted of an offence and have not reoffended during a specified period to apply to have their conviction spent. The purpose of the Act is to encourage rehabilitation and reduce the legal and social stigma associated with a conviction.
When a conviction is spent, individuals are generally not obliged to disclose their previous offence or conviction. However, there are certain situations where spent convictions must be disclosed, such as when applying for an Australian visa or a Working with Children Check. Spent convictions also remain part of an individual's private criminal record kept by the police and can be considered when determining bail or sentencing for any future offences.
To apply to have a conviction spent, individuals can submit a National Police Certificate application, which includes a request for the WA Police Force to review and spend any eligible WA convictions. Alternatively, a separate spent conviction application form can be downloaded from the Western Australian Police Force website. The application process typically involves filing a Notice of Motion, an affidavit, criminal history, and any supporting references or reports.
It is important to note that there are different processes for lesser convictions and serious convictions. Lesser convictions are those resulting in imprisonment of one year or less or a fine of less than $15,000. Serious convictions, on the other hand, are dealt with in the District Court or Supreme Court, and applications for these to be spent must be made to the court itself. Additionally, certain occupations, such as licensed builders, plumbers, and electricians, may require police checks during the licensing process, which could involve disclosing spent convictions.
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Exceptions to the scheme
While a spent conviction in Western Australia generally means that a person does not have to disclose that they were charged with and convicted of an offence, there are some exceptions to this rule.
The Spent Convictions Act 1988 (WA) outlines a full list of exceptions and activities that require disclosure of spent convictions. These include, but are not limited to, applying for an Australian visa, working with children or other vulnerable people, and serious offences such as sexual offences and violent crimes.
Additionally, certain professions such as licensed builders, plumbers, electricians, and other trades may need to disclose spent convictions as part of the licensing process. Volunteers may also need to disclose spent convictions for certain roles. Spent convictions can also impact a person's ability to travel to certain destinations, such as the US and Canada, which have strict entry requirements for individuals with criminal records.
It is important to note that even if a conviction is spent, it remains part of a person's private criminal record kept by the police and may be considered when the police or a court are deciding on bail or sentencing. Therefore, it is always advisable to seek legal advice to understand the specific circumstances and requirements related to spent convictions.
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The purpose of the scheme
The purpose of the Spent Convictions Scheme is to encourage rehabilitation and give people who have been convicted of minor crimes a second chance. The scheme is based on the principle that people should not be punished indefinitely for past mistakes. It aims to provide positive encouragement and incentives for offenders to refrain from further unlawful conduct.
The scheme limits the disclosure of certain older offences after a stipulated waiting period has passed or specific conditions are met. This period is generally referred to as the "waiting period" or the "crime-free" period. During this time, the individual must not reoffend, and they must demonstrate rehabilitation.
In Western Australia, the Spent Convictions Act 1988 governs the process. Individuals can apply to the WA Police Force to have their eligible convictions spent when applying for a National Police Certificate. Alternatively, a separate spent conviction application form can be submitted. If successful, the conviction will not appear on the National Police Certificate, and the individual is not legally required to disclose it to employers or other organisations.
It is important to note that there are exceptions to the scheme. Certain serious offences, such as sexual offences and violent crimes, may not qualify. Additionally, spent convictions may still be considered in specific situations, such as when applying for an Australian visa or a Working with Children Check.
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Frequently asked questions
A spent conviction is a conviction that is no longer considered relevant for most purposes and is treated as if it never occurred. In Western Australia, the Spent Convictions Act 2022 allows for certain convictions to be spent after a specified period, depending on the sentence received.
A conviction is spent once the relevant waiting period has been served, and providing there are no disqualifying factors such as further offenses or certain types of sentences. The waiting period is typically 10 years from the end of a sentence for adults, and 5 years for youth offenders.
Once a conviction is spent, an individual is not required to disclose it to potential employers, educational institutions, or when applying for certain licenses and permits. This allows people with spent convictions to move on from their past and gain better access to employment, education, and other opportunities.
Yes, there are certain exceptions where a spent conviction may still need to be disclosed. These include applications for certain government jobs, working with children or vulnerable people, and when applying for a license to carry or possess a firearm.
Yes, it is possible to apply to the court to have a conviction spent earlier than the specified waiting period. This process is known as 'shortening the conviction spending period'. The court will consider factors such as the nature and seriousness of the offense, the age and character of the offender, and any rehabilitation or community contributions made since the offense.
