Clearing Your Criminal Record: Options for Moving Forward After a Conviction
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Introduction
A criminal record can create significant barriers to employment, housing, and other opportunities. Fortunately, Australian law provides several pathways to minimise the impact of past convictions. This guide explores your options for moving forward after a conviction in Australia.
Understanding Your Criminal Record
In Australia, a criminal record typically includes:
- Court convictions
- Findings of guilt (even without convictions)
- Pending charges
- Police investigations in some circumstances
Different agencies maintain different records, with the National Police Checking Service coordinating national criminal history checks.
Spent Convictions Schemes
Every Australian jurisdiction has legislation that allows certain convictions to become “spent” after a crime-free period. Once spent, these convictions need not be disclosed in most circumstances and won’t appear on standard police checks.
How Convictions Become Spent
The process generally works as follows:
- Crime-free waiting period: Typically 10 years for adults and 5 years for juvenile offenders (varies by jurisdiction)
- Automatic application: Most convictions become spent automatically after the waiting period
- Conviction severity limits: Serious offences with prison sentences exceeding a specific threshold (often 30 months) may be ineligible
- Sexual offences: These typically have special rules and may be excluded from spent schemes
State and Territory Variations
Each jurisdiction has specific provisions:
- NSW: Criminal Records Act 1991 (10 years for adults, 3 years for juveniles)
- Victoria: Spent Convictions Act 2021 (10 years for adults, 5 years for juveniles)
- Queensland: Criminal Law (Rehabilitation of Offenders) Act 1986 (10 years for adults, 5 years for juveniles)
- Western Australia: Spent Convictions Act 1988 (10 years for adults)
- South Australia: Spent Convictions Act 2009 (10 years for adults, 5 years for juveniles)
- Tasmania: Annulled Convictions Act 2003 (10 years for adults, 5 years for juveniles)
- ACT: Spent Convictions Act 2000 (10 years for adults, 5 years for juveniles)
- Northern Territory: Criminal Records (Spent Convictions) Act 1992 (10 years for adults, 5 years for juveniles)
Court-Issued Non-Conviction Orders
Courts can issue orders that prevent convictions from being recorded in the first place:
Section 10 Dismissals (NSW) and Similar Orders
Section 10 of the Crimes (Sentencing Procedure) Act 1999 in NSW (and similar provisions in other jurisdictions) allows courts to find a person guilty without recording a conviction. This approach is typically available for:
- First-time offenders
- Minor offences
- Cases with significant mitigating circumstances
Good Behaviour Bonds Without Conviction
Courts may place offenders on good behaviour bonds without recording convictions. These orders require compliance with specific conditions for a set period, after which the matter is finalised without a criminal record.
Applying for Criminal Record Clearance
For convictions that don’t automatically become spent:
Court Applications
Some jurisdictions allow applications to court to have convictions declared spent earlier than the standard waiting period, particularly where:
- The offence was minor
- Significant time has passed
- There is evidence of rehabilitation
- The conviction creates disproportionate hardship
Pardons
While rare, the Governor-General or state Governors can issue pardons that effectively nullify convictions. These are typically reserved for:
- Cases of demonstrated innocence
- Extraordinary circumstances
- Historical injustices
Disclosure Obligations and Exceptions
Even with spent convictions, disclosure may still be required in certain circumstances:
When Spent Convictions Must Be Disclosed
- Applications for working with children or vulnerable people
- Employment in law enforcement, corrections, or judiciary
- Certain licence applications (e.g., firearms, security)
- Immigration and visa applications
- Court proceedings where relevant
Practical Steps to Take
1. Obtain Your Criminal History
Request your criminal history from relevant police services to understand exactly what appears on your record.
2. Determine Eligibility for Spent Schemes
Based on conviction dates, offence types, and sentences, assess whether your convictions qualify under spent conviction schemes.
3. Seek Legal Advice
Consult with a lawyer experienced in criminal records to explore options specific to your situation and jurisdiction.
4. Prepare Documentation
Gather evidence of rehabilitation including:
- Character references
- Employment history
- Community involvement
- Treatment completion certificates
- Education achievements
5. Lodge Appropriate Applications
File any necessary applications for court-ordered spent convictions where available in your jurisdiction.
Moving Forward with a Criminal Record
While waiting for convictions to become spent:
Disclosure Strategies
When legally required to disclose:
- Be honest but concise
- Focus on rehabilitation and changes since the offence
- Explain the context without making excuses
- Highlight positive steps taken
Building a Positive Record
- Pursue education and training
- Engage in volunteer work
- Develop professional references
- Consider working with employers who participate in rehabilitation programs
Conclusion
While a criminal conviction can present challenges, Australian law provides several pathways to minimise its long-term impact. Understanding spent conviction schemes, pursuing non-conviction orders where appropriate, and taking proactive steps toward rehabilitation can help you move forward successfully.
The specific options available to you depend on your jurisdiction, the nature of your offences, and your individual circumstances. Seeking professional legal advice is crucial for navigating these complex systems effectively and finding the best path forward for your situation.
Our Criminal lawyers can help you today. Call (02) 8084 9929 to arrange a free initial consultation with a Criminal lawyer.
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