Spent Convictions Act 2009

This Act may be cited as the Spent Convictions Act 2009.

In this Act, unless the contrary intention appears—

adult means a person of or above the age of 18 years;

AUSTRAC means the Australian Transaction Reports and Analysis Centre continued in existence by the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth;

child means a person under the age of 18 years;

Commonwealth authority means—

a Commonwealth Minister; or

a Commonwealth Department; or

the Defence Force; or

a body (whether incorporated or not) established or appointed for a public purpose by or under a Commonwealth law, not being—

an incorporated company, society or association; or

an organisation registered, or an association recognised, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth, or a branch of such an organisation or association; or

a body established or appointed by the Governor‑General, or by a Commonwealth Minister, otherwise than by or under a Commonwealth law; or

a person holding or performing the duties of an office established by or under, or an appointment made under, a Commonwealth law other than the office of Secretary of a Commonwealth Department; or

a person holding or performing the duties of an appointment made by the Governor‑General, or by a Commonwealth Minister, otherwise than under a Commonwealth law; or

a federal court; or

a tribunal established under a Commonwealth law; or

the Australian Federal Police;

Commonwealth Department means an Agency within the meaning of the Public Service Act 1999 of the Commonwealth;

conviction means a conviction, whether summary or on indictment, for an offence and includes a finding which, under subsection (5), is treated as a conviction for the purposes of this Act or a case which falls within the ambit of subsection (6);

corresponding law means a law of another State or of the Commonwealth that is declared by the regulations to be a corresponding law for the purposes of this Act;

designated Commonwealth position means a position in a Commonwealth authority which the head of the authority has determined to be a designated security assessment position whose duties are likely to involve access to national security information classified as secret or top secret;

designated judicial authority means—

a court or tribunal (including a military tribunal established under a law of the Commonwealth); or

a judicial or quasi‑judicial body brought within the ambit of this definition by the regulations;

designated sex-related offence means—

a sex offence—

that is constituted by consenting adults engaging in sexual intercourse, or another form of sexual activity; or

that is constituted by an adult procuring another adult to engage in consensual sexual intercourse, or another form of consensual sexual activity; or

an offence where—

the offence is constituted by consenting persons of the same sex engaging in sexual intercourse, or another form of sexual activity; and

at least 1 of them is 16 or 17 years of age (and none of them is younger); and

their actions would not have constituted an offence if they were not of the same sex; and

no person engaged in the activity was in a position of authority in relation to another person engaged in the activity; or

an offence against—

section 69, 70 or 71 (other than section 70(1)(b) or (c)) of the Criminal Law Consolidation Act 1935 before its repeal by the Criminal Law Consolidation Act Amendment Act 1972 (No 94 of 1972); or

section 69 (other than section 69(1)(b)(ii) or (iii)) of the Criminal Law Consolidation Act 1935 before its repeal by the Criminal Law (Sexual Offences) Amendment Act 1975 (No 66 of 1975); or

any other provision, prescribed by regulation, that involves consensual sexual activity between persons of the same sex; or

an offence against the common law substantially corresponding to an offence referred to in paragraph (a) or (c); or

an offence of attempting, or of conspiracy or incitement, to commit an offence mentioned in paragraphs (a) to (d);

eligible adult offence means an offence committed by an adult for which—

a sentence of imprisonment is not imposed; or

a sentence of imprisonment is imposed but the sentence is 12 months or less;

eligible juvenile offence means an offence committed while the defendant was a child where, on conviction of the defendant—

a sentence of imprisonment is not imposed; or

a sentence of imprisonment is imposed but the sentence is 24 months or less;

eligible sex offence means a sex offence (being either an eligible adult offence or an eligible juvenile offence) for which a sentence of imprisonment is not imposed;

intelligence or security agency means—

the Australian Security Intelligence Organisation; or

the Australian Secret Intelligence Service; or

the Office of National Assessments; or

that part of the Department of Defence known as the Defence Signals Directorate; or

that part of the Department of Defence known as the Defence Intelligence Organisation; or

that part of the Department of Defence known as the Defence Imagery and Geospatial Organisation; or

any other similar agency, office or part of a Commonwealth Department that has a direct involvement in national intelligence or security activities;

justice agency means any of the following:

the Australian Federal Police;

the police force or service of a State;

the Australian Customs and Border Protection Service;

the National Anti‑Corruption Commission, the Australian Crime Commission, or any other similar crime or integrity commission, body, office or agency established under a law of the Commonwealth or a State;

AusCheck (established by the Commonwealth on 5 December 2005);

the Australian Securities and Investments Commission;

the Attorney‑General for the Commonwealth or a State;

the Director of Public Prosecutions for the Commonwealth or a State, or a person or body performing a similar function under a law of a State;

staff appointed to assist a person or body referred to in paragraph (i);

a government department or agency of the Commonwealth or the State which is concerned, as 1 of its principal or primary duties, with the prosecution of offences or assisting with the prosecution of offences;

the Australian Taxation Office or the Australian Electoral Commission, in connection with any function associated with the prosecution of offences or assisting with the prosecution of offences;

the Department for Correctional Services or an equivalent entity in another State;

the Department responsible for a training centre under the Young Offenders Act 1993 or an equivalent entity in another State;

the Registrar or administrator of a Commonwealth or State court;

a person or body brought within the ambit of this definition or a corresponding definition by regulations made under this Act or under a corresponding law for the purposes of a corresponding definition;

minor offence means an offence where, on conviction—

the defendant is discharged without penalty; or

the only penalty imposed on the defendant (disregarding any demerit points that may apply) is a fine not exceeding—

unless an amount applies under subparagraph (ii)—$500; or

an amount, greater than $500, prescribed by the regulations for the purposes of this definition;

mutual recognition principle—see subsection (7);

national security information means information affecting the defence, security or international relations of Australia;

official record means a record kept by a court, tribunal, police force or public authority;

overseas jurisdiction means a jurisdiction outside Australia and the external territories;

prescribed public decency offence means an offence against public decency or morality by which homosexual behaviour could be punished (but does not include a sex offence);

public authority means—

a public or local authority constituted by or under an Act of this State, another State or the Commonwealth; or

a government department of this State, another State or the Commonwealth; or

a statutory body representing the Crown in right of this State, another State or the Commonwealth, and includes a person performing a function on behalf of the authority, department or body;

qualification period means the qualification period that applies under section 7;

qualified magistrate—see section 6A;

quashed—a conviction is quashed if—

the conviction is quashed or set aside; or

a finding of guilt, or a finding that a charge has been proved, is quashed or set aside;

recognised jurisdiction—if a law of another State or of the Commonwealth has been declared by the regulations to be a corresponding law, then that State or the Commonwealth (as the case requires) is a recognised jurisdiction;

security has the same meaning as in the Australian Security Intelligence Organisation Act 1979 of the Commonwealth;

sex offence means an offence prescribed as a sex offence for the purposes of this definition;

spent, for a conviction—see section 4;

State includes Territory;

this jurisdiction means South Australia;

tribunal means a tribunal constituted by law;

work includes the following:

work—

under a contract of employment or contract for services; or

in a leadership role in a religious institution or as part of the duties of a religious vocation; or

as an officer of a body corporate, member of the committee of management of an unincorporated body or association or member of a partnership; or

as a volunteer, other than unpaid work engaged in for a private or domestic purpose; or

as a self‑employed person;

practical training as part of a course of education or vocational training;

acting in a prescribed capacity or engaging in a prescribed activity.

If—

a person is convicted by a court of a number of offences; and

the sentencing court imposes 1 penalty for some or all of the offences, the penalty so imposed will be taken to apply in relation to each offence for the purpose of determining whether a particular offence is an eligible adult offence or an eligible juvenile offence under subsection (1).

In this Act, a reference to a sentence of imprisonment extends to—

a period of detention under the Young Offenders Act 1993;

a sentence of imprisonment or a period of detention that has been suspended (in whole or in part);

a period of detention under section 57 of the Sentencing Act 2017;

where a court has made a finding of a kind referred to in subsection (5)(c) and a limiting term is fixed under section 269O(2) of the Criminal Law Consolidation Act 1935, or a term of an equivalent nature is fixed under a law of another jurisdiction—that limiting term or that term of an equivalent nature (as the case may be).

In this Act, a reference to a conviction that is spent includes a reference to the charge to which the spent conviction related and any investigation or legal process associated with the offence or the conviction.

The following findings are treated as convictions for the purposes of this Act:

a formal finding of guilt by a court;

a finding by a court that an offence has been proved;

a finding by a court that the objective elements of an offence are established in proceedings under Part 8A of the Criminal Law Consolidation Act 1935 or a law of any other jurisdiction in which the defendant was found to be mentally incompetent to commit the offence or unfit to stand trial for the offence.

For the purposes of this Act, if an offence is taken into account for the purposes of sentencing for another offence or offences, it will be taken that there is a conviction for that offence (and that the conviction is capable of being spent).

The mutual recognition principle is as follows:

a conviction for an offence against a law of a recognised jurisdiction that is spent under the corresponding law of that jurisdiction will be taken to be spent for the purposes of Part 3 and Part 4; and

a conviction for an offence against a law of a recognised jurisdiction that is not spent (or has ceased to be spent) under the corresponding law of that jurisdiction will be taken not to be spent for the purposes of Part 3 and Part 4.

For the purposes of the definition of designated sex-related offence—

a person will not be taken to have engaged in an activity with his or her consent if the person would not be taken to have freely and voluntarily agreed to the activity under section 46 of the Criminal Law Consolidation Act 1935; and

a person is in a position of authority in relation to another person if they would be in a position of authority in relation to the person under section 49(5a) of the Criminal Law Consolidation Act 1935.

For the purposes of this Act, the conviction of a person for an offence is spent if—

the conviction is spent under Part 2; or

the conviction is quashed; or

the person is granted a pardon for the offence.

In addition, if—

a finding is treated as a conviction under section 3(5); but

—

in the case of a finding referred to in section 3(5)(a) and (b)—no conviction is recorded against the person; or

in the case of a finding referred to in section 3(5)(c)—the defendant is released unconditionally, then the finding, as constituting a conviction for the purposes of this Act, will be taken to be immediately spent.

This section applies subject to the operation of section 6.

The following convictions (and no other convictions) are capable of becoming spent under this Act:

a conviction for an eligible adult offence;

a conviction for an eligible juvenile offence;

a conviction for a designated sex‑related offence;

a conviction for a prescribed public decency offence.

However, the following convictions cannot become spent under this Act:

a conviction of a body corporate;

a conviction for a sex offence unless the offence is an eligible sex offence or a designated sex‑related offence;

a conviction of a class prescribed by the regulations.

A regulation made under subsection (2)(c) does not affect a conviction that has already become spent under this Act.

Nothing in this Act affects—

the enforcement of any process or proceedings relating to any fine or other sum imposed with respect to a spent conviction; or

any process or proceedings in respect of a breach of a condition or requirement applicable to a sentence imposed in respect of a spent conviction; or

the operation of any disqualification, disability or other prohibition imposed in respect of or on account of a spent conviction; or

the imposition or accumulation of demerit points; or

the exercise of any other enforcement power or the institution or undertaking of any other processes or proceedings by a justice agency.

Nothing in this Act affects a claim (or any proceedings arising from a claim) for compensation (including statutory compensation) for injury, loss or damage caused by an offence.

This section applies subject to the operation of section 6.

This Act applies to convictions for offences against the laws of this State and convictions for offences against any other law.

In the case of convictions for offences against the laws of a recognised jurisdiction, the mutual recognition principle applies.

In the case of convictions for offences against the laws of any other jurisdiction (including the laws of an overseas jurisdiction), this Act applies with the changes necessary to enable its provisions to apply to those convictions in a way that corresponds as closely as possible to the way in which it applies to convictions for offences against the laws of this jurisdiction.

However, if an offence against the laws of another jurisdiction (including the laws of an overseas jurisdiction), other than a recognised jurisdiction, has no correspondence to an offence against a law of this jurisdiction, then the conviction of the person for the offence is immediately spent for the purposes of this Act.

This Act applies to convictions for offences whether such convictions occurred before or after the commencement of this Act.

For the purposes of this Act, a qualified magistrate is a magistrate in relation to whom a consent is in force under subsection (2) and who has been approved by the Chief Magistrate to act as a qualified magistrate in accordance with subsection (3).

A magistrate may, by instrument in writing, consent to acting as a qualified magistrate under this Act.

The Chief Magistrate may, by instrument in writing, approve a magistrate in relation to whom a consent is in force under subsection (2) to act as a qualified magistrate under this Act.

A qualified magistrate has, in relation to the exercise of a function conferred on a qualified magistrate by this Act, the same protection, privileges and immunities as a magistrate has in relation to proceedings in the Magistrates Court of South Australia.

A magistrate who has given consent under subsection (2) may, by instrument in writing, revoke the consent.

An approval of a magistrate to act as a qualified magistrate under subsection (3) is revoked if—

the qualified magistrate revokes his or her consent in accordance with subsection (5) or ceases to be a magistrate; or

the Chief Magistrate determines that the magistrate should not continue to be a qualified magistrate.

Subject to this Act, the qualification period for the conviction of a person for an offence is—

in the case of an eligible juvenile offence, other than where the person was dealt with as an adult—5 consecutive years; or

in any other case—10 consecutive years, from the relevant day for the conviction for the offence.

If during the qualification period for a conviction (the first conviction) the person is convicted of another offence (the second conviction), the time that has run as part of the qualification period for the first conviction is cancelled and the relevant day for the second conviction becomes a new relevant day for the first conviction (and a conviction for a third offence within the period that then applies will have a corresponding effect on the first and second convictions, and so on for any subsequent conviction or convictions).

In addition—

if at the end of a period that applies under subsection (1) or (2) the person is a registrable offender under the Child Sex Offenders Registration Act 2006 who is subject to reporting obligations imposed by Part 3 of that Act, the qualification period is extended so as to expire when or if those reporting obligations cease or are suspended under that Part; and

if during the period of extension that applies under paragraph (a) the person is convicted of another offence, the conviction has the same effect on any previous conviction that is subject to the period of extension that a second or subsequent conviction has on a previous conviction or convictions under subsection (2).

For the purposes of subsections (2) and (3)(b), a conviction for a second or subsequent offence will be disregarded if—

the offence is a minor offence (including in a case where the conviction with respect to the minor offence is constituted by a finding under section 3(5)); or

the conviction is quashed; or

the convicted person is granted a pardon.

A period under a preceding subsection may commence before the commencement of this Act and, in such a case, the qualification period will be completed—

on the commencement of this Act; or

on the day on which the qualification period would have been completed if this Act had been in force continuously since the day of the relevant conviction, whichever is the later.

For the purposes of this section—

the relevant day for the conviction for an offence is the day on which the person is convicted; and

a reference to a conviction for an offence does not extend to a conviction for an offence against a law of another jurisdiction (including the laws of an overseas jurisdiction), other than a recognised jurisdiction, that has no correspondence to an offence against a law of this jurisdiction.

A conviction for an offence, other than a sex offence, is spent on completion of the qualification period for the conviction.

Subsection (1) operates subject to section 4(1a).

A conviction for an eligible sex offence is spent if, on application by the convicted person in accordance with the regulations, a qualified magistrate makes an order that the conviction is spent.

An application for an order under this section in respect of a conviction—

may not be made until the completion of the qualification period for the conviction; and

may not be made if a qualified magistrate has refused to make an order under this section in respect of the same conviction within the preceding 2 years.

An application under this section may not be made in respect of a conviction for an offence against the laws of another jurisdiction.

Schedule 2 applies to an application under this section and to proceedings on an application.

The making of an order under this section is at the discretion of the qualified magistrate and that discretion will be exercised having regard to—

the nature, circumstances and seriousness of the offence; and

if a victim impact statement was furnished to the sentencing court in connection with the sentencing of the applicant for the offence (and that statement is available to the qualified magistrate)—anything referred to in that statement; and

any penalty imposed, and any other order or requirement made or imposed by a court, in relation to the offence; and

the length of time since the conviction; and

all the circumstances of the applicant, including the circumstances of the applicant at the time of the commission of the offence and at the time of the application and whether the applicant appears to have rehabilitated and to be of good character; and

whether the spending of the conviction and the non‑disclosure of the offence to other persons by operation of an order under this section might present a risk to the public (and, if so, the extent of that risk); and

whether there is any other public interest served in not making the order; and

any other matter considered relevant by the qualified magistrate.

A conviction for a designated sex‑related offence is spent if, on application in accordance with the regulations, a qualified magistrate makes an order in accordance with subsection (5) that the conviction is spent.

The following persons may apply for an order under this section:

the convicted person;

a person specified in Schedule 2 clause 1A, in the circumstances specified.

An application under this section may not be made in respect of a conviction for an offence against the laws of another jurisdiction.

Schedule 2 applies to an application under this section and to proceedings on an application.

A qualified magistrate must make an order that a conviction for an offence is spent if satisfied that—

the offence is a designated sex‑related offence; and

the conduct engaged in by the convicted person or constituting the offence would not, at the time the application is considered, constitute an offence under the law of the State.

In considering matters in subsection (5)(b) relating to an offence that falls within the ambit of paragraph (c) or (d) of the definition of designated sex‑related offence (or an offence of attempting, or of conspiracy or incitement, to commit such an offence), the qualified magistrate must have regard to—

whether any person involved in the conduct that was the subject of the conviction did or did not consent to the conduct; and

the ages and respective ages of any persons involved in the conduct that was the subject of the conviction; and

any other matter the qualified magistrate reasonably considers relevant in the circumstances.

A conviction for a prescribed public decency offence is spent if, on application in accordance with the regulations, a qualified magistrate makes an order in accordance with subsection (6) that the conviction is spent.

The following persons may apply for an order under this section:

the convicted person;

a person specified in Schedule 2 clause 1A, in the circumstances specified.

An application under this section may not be made in respect of a conviction for an offence against the laws of another jurisdiction.

An application for an order under this section may be made irrespective of whether the conviction the subject of the application has been spent under section 8.

Schedule 2 applies to an application under this section and to proceedings on an application.

A qualified magistrate must make an order that a conviction for an offence is spent if satisfied that—

the offence is a prescribed public decency offence; and

the convicted person would not have been charged with the offence but for the fact that the conduct engaged in by the person or constituting the offence was suspected of being, or being connected to, homosexual activity; and

the conduct engaged in by the convicted person or constituting the offence would not, at the time the application is considered, constitute an offence under the law of the State.

Despite the fact that a conviction for a prescribed public decency offence may be spent under section 8, the qualified magistrate may make an order under subsection (6) that the conviction is spent under this section and, accordingly, the order applies for the purposes of Schedule 1 clause a1(1)(c).

In considering matters in subsection (6)(c), the qualified magistrate must have regard to the following:

whether any person involved in the conduct that was the subject of the conviction did or did not consent to the conduct;

the ages and respective ages of any persons involved in the conduct that was the subject of the conviction;

any other matter the qualified magistrate reasonably considers relevant in the circumstances.

A conviction of a person for an offence (the first offence) that is spent is not revived by the subsequent conviction of the person for another offence (the later offence).

However, if—

the later offence was committed during the qualification period for the first offence; and

the later offence is an offence for which a conviction during the qualification period for the first offence would have resulted in the cancellation of the time that had already run as part of the qualification period under section 7(2) or (3)(b), the first offence will cease to be treated as a spent conviction under this Act while the qualification period for the later offence is running.