Criminal Records Act 1991

This Act may be cited as the Criminal Records Act 1991.

This Act commences on a day or days to be appointed by proclamation.

The primary object of this Act is to implement a scheme to limit the effect of a person’s conviction for a relatively minor offence if the person completes a period of crime-free behaviour. On completion of the period, the conviction is to be regarded as spent and, subject to some exceptions, is not to form part of the person’s criminal history.

The Act also provides for the effect of the quashing of a conviction and the pardoning of an offence.

The Act also provides for a scheme to enable certain convictions for a number of decriminalised homosexual sexual conduct offences to become extinguished.

In this Act—

control order means an order made under section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987.

conviction means a conviction, whether summary or on indictment, for an offence and includes a finding or order which, under section 5, is treated as a conviction for the purposes of this Act.

court includes a tribunal.

intervention program has the same meaning as in the Criminal Procedure Act 1986.

public authority means a public or local authority constituted by or under any Act, a government department or a statutory body representing the Crown, and includes a person exercising functions on behalf of the authority, department or body.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

In this Act, a reference to a spent conviction includes a reference to—

the charge to which the spent conviction relates, and

any action taken in respect of a breach of prison discipline committed during a period of imprisonment imposed in relation to the conviction.

In this Act, a reference to an extinguished conviction includes a reference to the charge to which the extinguished conviction relates.

In this Act—

a reference to a function includes a reference to a power, authority and duty, and

a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

Notes included in this Act do not form part of this Act.

The following findings or orders of a court are treated as convictions for the purposes of this Act—

a finding that an offence has been proved, or that a person is guilty of an offence, without proceeding to a conviction,

a finding that an offence has been proved, or that a person is guilty of an offence, and the discharging of, or the making of an order releasing, the offender conditionally on entering into a recognizance to be of good behaviour for a specified period or on other conditions determined by the court,

in the case of the Children’s Court, an order under section 33 of the Children (Criminal Proceedings) Act 1987, other than an order dismissing a charge.

In order that the provisions of this Act may apply to convictions for offences against laws other than New South Wales laws, references in this Act to offences, convictions and courts are taken to include references to offences, convictions and courts of places other than those of New South Wales which correspond (or which correspond as closely as possible) to the relevant New South Wales offences, convictions and courts.

In order that the provisions of this Act may apply to convictions imposed before the date of commencement of section 7, references in this Act to convictions are taken to include references to convictions so imposed.

All convictions are capable of becoming spent in accordance with this Act, except the following—

convictions for which a prison sentence of more than 6 months has been imposed,

convictions for sexual offences,

convictions imposed against bodies corporate,

convictions prescribed by the regulations.

A conviction may become spent in accordance with this Act whether it is a conviction for an offence against a law of New South Wales or a conviction for an offence against any other law.

A conviction may become spent in accordance with this Act whether it is a conviction imposed before, on or after the date of commencement of this section.

In this section—

prison sentence does not include a sentence the subject of an intensive correction order or the detaining of a person under a control order.

sexual offences means the following offences—

the offences under sections 61B–61F, 65A–66D, 66F, 73, 74, 78A, 78B, 78H, 78I, 78K, 78L, 78N, 78O, 78Q, 79, 79A, 79B, 80, 91A, 91B and 91D–91G of the Crimes Act 1900,

from the date of commencement of Schedule 1 (3) to the Crimes (Amendment) Act 1989, the offences under sections 61I–61P of the Crimes Act 1900,

from the date of commencement of Schedule 1 (6) to the Crimes (Amendment) Act 1989, the offence under section 80A of the Crimes Act 1900,

the offence under section 5 of the Summary Offences Act 1988,

an offence (such as an offence under section 37 (2) or 112 of the Crimes Act 1900) which includes the commission of, or an intention to commit, an offence referred to in paragraph (a), (b), (c) or (d),

an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a), (b), (c), (d) or (e),

an offence committed—

before the date of commencement of this section against a law of New South Wales or a law of a place outside New South Wales, or

after the date of commencement of this section against a law of a place outside New South Wales,

which constituted or constitutes an offence of a similar nature to an offence referred to in paragraph (a), (b), (c), (d), (e) or (f),

an offence prescribed by the regulations as a sexual offence for the purposes of this section.

A reference in this section to a prison sentence means, in the case of an aggregate sentence of imprisonment (within the meaning of the Crimes (Sentencing Procedure) Act 1999) imposed in respect of more than 1 offence, each prison sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence, as recorded by the court that imposed the sentence.

A conviction is spent on completion of the relevant crime-free period, except as provided by this section.

A finding that an offence has been proved, or that a person is guilty of an offence, without proceeding to a conviction is spent immediately after the finding is made, except as provided by this section.

An order of the Children’s Court dismissing a charge and administering a caution is spent immediately after the caution is administered.

A finding that an offence has been proved, or that a person is guilty of an offence, and—

the discharging of, or the making of an order releasing, the offender conditionally on entering into a good behaviour bond for a specified period, on participating in an intervention program or on other conditions determined by the court, or

the releasing of the offender on probation on such conditions as the court may determine, for such period of time as it thinks fit, or

the making of a conditional release order, without conviction, under section 9 of the Crimes (Sentencing Procedure) Act 1999, for a specified period,

is spent on satisfactory completion of the period or satisfactory compliance with the program (including any intervention plan arising out of the program) or conditions, as the case may require.

A conviction in respect of an offence of a kind which has ceased, by operation of law, to be an offence is spent immediately the offence ceased to be an offence, if the offence is prescribed by the regulations to be an offence to which this subsection applies.

A conviction which is spent is not revived by a subsequent conviction.

A reference in subsection (4) (a) (as substituted by the Crimes Legislation Amendment (Criminal Justice Interventions) Act 2002) to a good behaviour bond includes a reference to a recognizance to be of good behaviour made before the commencement of the Crimes (Sentencing Procedure) Act 1999.

The crime-free period in the case of a conviction of a court (other than the Children’s Court) is any period of not less than 10 consecutive years after the date of the person’s conviction during which—

the person has not been convicted of an offence punishable by imprisonment, and

the person has not been in prison because of a conviction for any offence and has not been unlawfully at large.

The crime-free period may commence before the date of commencement of section 7.

The crime-free period in the case of an order of the Children’s Court under section 33 of the Children (Criminal Proceedings) Act 1987 (other than a finding or order referred to in section 8 (2) or (3) of this Act) in respect of a person is any period of not less than 3 consecutive years after the date of the order during which—

the person has not been subject to a control order, and

the person has not been convicted of an offence punishable by imprisonment, and

the person has not been in prison because of a conviction for any offence and has not been unlawfully at large.

The crime-free period may commence before the date of commencement of section 7.

In this section, traffic offence means an offence arising out of the use of a motor vehicle or trailer (within the meaning of the road transport legislation referred to in section 6 of the Road Transport Act 2013) and non-traffic offence means any other offence.

A conviction for a traffic offence and any period of imprisonment imposed as a consequence of such a conviction are to be disregarded in calculating the crime-free period for a conviction for a non-traffic offence. A conviction for a traffic offence is of relevance only in calculating the crime-free period for a conviction for an earlier traffic offence.

A conviction for a non-traffic offence and any period of imprisonment imposed as a consequence of such a conviction are to be disregarded in calculating the crime-free period for a conviction for a traffic offence. A conviction for a non-traffic offence is of relevance only in calculating the crime-free period for an earlier non-traffic offence.

Despite subsections (2) and (3), regard is to be had to a conviction for any of the following offences in calculating the crime-free period for any conviction (whether for a traffic offence or a non-traffic offence). A conviction for any of the following offences is of relevance in determining the crime-free period for any earlier offence. The offences are—

culpable driving (section 52A of the Crimes Act 1900 as in force immediately before the commencement of Schedule 1 to the Crimes (Dangerous Driving Offences) Amendment Act 1994),

dangerous driving occasioning death (section 52A (1) of the Crimes Act 1900),

aggravated dangerous driving occasioning death (section 52A (2) of the Crimes Act 1900),

dangerous driving occasioning grievous bodily harm (section 52A (3) of the Crimes Act 1900),

aggravated dangerous driving occasioning grievous bodily harm (section 52A (4) of the Crimes Act 1900),

injury by furious driving (section 53 of the Crimes Act 1900),

manslaughter (section 24 of the Crimes Act 1900) or causing grievous bodily harm (section 54 of the Crimes Act 1900) where, in either case, the offence arises out of the use of a motor vehicle or trailer (within the meaning of the road transport legislation referred to in section 6 of the Road Transport Act 2013).

If a conviction of a person is spent—

the person is not required to disclose to any other person for any purpose information concerning the spent conviction, and

a question concerning the person’s criminal history is taken to refer only to any convictions of the person which are not spent, and

in the application to the person of a provision of an Act or statutory instrument—

a reference in the provision to a conviction is taken to be a reference only to any convictions of the person which are not spent, and

a reference in the provision to the person’s character or fitness is not to be interpreted as permitting or requiring account to be taken of spent convictions.