Introduction

We have all heard the threat before: “Once it’s on your criminal record, it’s there forever.” However, this is not always the actual case. In New South Wales, a past criminal conviction can have lasting effects on a person’s life, particularly when it comes to their criminal history. The Criminal Records Act 1991 (NSW) establishes a spent conviction scheme to limit the long-term impact of an offence, allowing an individual to move on after completing a specific crime-free period of behaviour.

Understanding this legislation is essential, as it determines when a conviction can become spent and no longer needs to be disclosed to an employer or for other purposes. This guide explains how the NSW spent conviction scheme works, which convictions are capable of becoming spent, and what your legal obligations are when asked about your criminal record.

Understanding the NSW Spent Conviction Scheme

What Is a Spent Conviction in NSW

In New South Wales, a spent conviction is a past criminal offence that is effectively removed from a person’s criminal record after a specific period of crime-free behaviour. The term ‘conviction’ refers to a finding that an offence has been proved or that a person is guilty of an offence. Once a conviction has become spent, it is no longer considered part of your active criminal history for most purposes.

This means you are generally not required to disclose any information concerning the spent conviction to another person, such as a potential employer. Consequently, any question about your criminal history is taken to refer only to convictions that are not spent. This allows individuals to move forward without the burden of a past, relatively minor offence affecting their future opportunities.

The Purpose of the Spent Convictions Act

The spent conviction scheme in NSW is governed by the Criminal Records Act 1991. The primary purpose of this legislation is to limit the long-term consequences of a conviction for a relatively minor offence. It allows a person’s criminal record to be cleared after they have demonstrated responsible, crime-free behaviour for a set period.

The Criminal Records Act 1991 (NSW) establishes a framework where, upon completion of this crime-free period, the conviction is regarded as spent. Subject to certain exceptions, the offence will no longer form part of the person’s disclosable criminal history, supporting their rehabilitation and reintegration into the community.

When Your Conviction Can Become Spent

The Required Crime-Free Period for a Conviction

For a conviction to become spent in New South Wales under the Criminal Records Act 1991 (NSW), an individual must complete a specified crime-free period. This waiting period varies according to the person’s age at the time of conviction:

• For adults: Ten consecutive years without a conviction.
• For children: Three consecutive years in the Children’s Court from the date of the order.

During this period, the individual must not be convicted of any other offence punishable by imprisonment. If a new imprisonment-punishable offence occurs, the crime-free clock restarts from the date of that conviction.

Convictions That Become Spent Immediately

Certain findings of guilt do not require a lengthy crime-free period and become spent straight away or upon completion of specific court orders. A conviction is spent immediately if a court finds a person guilty but does not record a conviction.

Other circumstances in which convictions can become spent sooner include:

• Children’s Court cautions: The finding is spent immediately and will not appear on a police check.
• Good behaviour bonds or intervention programs: If no conviction is recorded, the finding is spent upon successful completion of the order.
• Changes in the law: When an act ceases to be an offence due to legislative change, any existing convictions for that offence automatically become spent.

Convictions That Are Excluded from the Scheme

Offences Incapable of Becoming Spent

Under the Criminal Records Act 1991 (NSW), not every conviction is capable of becoming spent. Certain serious offences are permanently excluded from the spent conviction scheme and will always remain on a person’s criminal record in New South Wales.

According to the legislation, the following convictions cannot become spent:

• A conviction for which a sentence of imprisonment of more than six months has been imposed
• A conviction for a sexual offence
• Any conviction imposed against a body corporate
• Specific convictions that are prescribed by the regulations

How Traffic Offences Impact the Crime-Free Period

In NSW, most traffic offences are handled separately from non-traffic offences when calculating the crime-free period. This means a conviction for a traffic offence and any resulting imprisonment are generally disregarded when determining the waiting period for a non-traffic offence to become spent.

However, there is an important exclusion for very serious driving offences. These offences are not treated separately and will impact the crime-free period for any conviction on a criminal record.

These serious traffic offences include:

• Culpable driving
• Dangerous driving causing death
• Dangerous driving causing grievous bodily harm
• Injury by furious driving
• Manslaughter

Your Disclosure Obligations for a Spent Conviction

General Rules on Disclosing a Spent Conviction to an Employer

Under the Criminal Records Act 1991 (NSW), once a conviction becomes spent in New South Wales, you are generally not required to disclose any information concerning that conviction to another person for any purpose. This protection is particularly relevant when dealing with a current or prospective employer.

Any question from an employer about your criminal history is legally taken to refer only to convictions that are not spent. This means:

• You are under no obligation to reveal a spent conviction, even if asked directly about your past
• The legislation ensures that your spent conviction does not form part of your disclosable criminal history in most circumstances

Unlawful Disclosure of Your Spent Conviction Information

The Criminal Records Act 1991 also makes it an offence for someone to unlawfully disclose information about another person’s spent conviction. A person who has access to official records containing this information must not disclose it without lawful authority.

This offence carries significant penalties, reinforcing the privacy protections afforded by the spent conviction scheme. The consequences for unlawful disclosure include:

• A maximum penalty of a $5,500 fine
• Imprisonment for up to 6 months
• Or both a fine and imprisonment

Furthermore, it is also an offence to fraudulently or dishonestly obtain or attempt to obtain information concerning a spent conviction, which carries the same maximum penalty.

When a Spent Conviction Must Still Be Disclosed

Disclosure for Certain Occupations & A Criminal Record Check

Although a spent conviction is generally protected from disclosure, this protection does not apply in certain occupations. Moreover, when you apply for a Police Check, you must state the purpose of the check to determine whether any legislative exceptions require you to disclose spent convictions.

In fact, your entire criminal record—including any spent convictions—may be disclosed if you seek employment in roles such as:

• A judge, magistrate or justice of the peace
• A police officer or member of staff of Corrective Services
• A teacher or teacher’s aide
• A security guard
• Firefighting or fire prevention positions, where an arson conviction can be considered

Additionally, spent convictions can be taken into account during a working with children check or when undergoing a worker’s check under the National Disability Insurance Scheme.

Disclosure in Court Proceedings & to Law Enforcement

The protection afforded by the Criminal Records Act 1991 (NSW) does not prevent law enforcement agencies from accessing information about a spent conviction. For instance, police in NSW may share details of a spent conviction with another agency when required.

Similarly, a spent conviction can be disclosed in court if authorised by a court order. Evidence of a spent conviction may also be introduced in subsequent proceedings, including considerations during sentencing for a new offence.

Conclusion

The New South Wales spent conviction scheme, governed by the Criminal Records Act 1991 (NSW), allows a past criminal offence to be removed from your active criminal record after a specific crime-free period, though serious convictions are excluded. While a spent conviction generally does not need to be disclosed to an employer, it is important to understand the specific circumstances where disclosure is still lawfully required.

Navigating the complexities of your criminal history can be challenging, but you do not have to do it alone. For trusted expertise and clear guidance on how your rights under the spent conviction legislation apply to your situation, contact the experienced team at Daoud Legal in Sydney today for a confidential consultation.

Frequently Asked Questions