Spent Convictions Regulations 1992

[Regulation 6]

SPENT CONVICTIONS ACT 1988

Notice under section 33(2)

THE EFFECT OF A CONVICTION BECOMING SPENT

The following is a summary of the legal effect of a conviction becoming spent under the Spent Convictions Act 1988.

REFERENCES TO CONVICTIONS IN STATE LAWS

A reference in a law of this State to a conviction of a person does not include a spent conviction.

DISCLOSURE

The conviction and the charge that led to it do not have to be disclosed by the person concerned or anyone else, except where required in court or tribunal proceedings, and even then the court or tribunal has to act to avoid or minimize publicity.

ACCESS TO CRIMINAL RECORDS

It is an offence for a person to obtain information about a spent conviction, or the charge that led to it, from official criminal records, unless the person has a lawful reason.

CHARACTER ASSESSMENT

A person who would otherwise be able under a law of this State to take into account a conviction or the charge that led to it when assessing a person’s character or fitness cannot do so in the case of a spent conviction.

DISCRIMINATION

Applicants for employment

A person from whom a person is seeking employment cannot use a spent conviction against the applicant —

• in arrangements made for deciding who should be offered employment

• in deciding who should be offered employment

• in the terms or conditions on which employment is offered.

Employees

An employer cannot use a spent conviction against an employee —

• in the terms or conditions of employment provided

• in access to opportunities for promotion, transfer, training or any other benefits

• to dismiss the employee

• otherwise to the detriment of the employee.

Persons who apply to be appointed, or who are appointed, as commission agents

The position is similar as for applicants for employment and employees.

Employment agencies

An employment agency cannot use a spent conviction to discriminate against a person in relation to any service that it provides —

• by refusing to provide the service

• in the terms or conditions on which the service is offered

• in the way in which it provides the service.

Unions and employer organisations

A union or employer organisation cannot use a spent conviction against a person —

• to reject an application for membership

• in setting the terms or conditions of admission to membership

• to take away membership or vary its terms

• in access to benefits provided

• otherwise to the detriment of the person.

Contract workers

A principal cannot use a spent conviction against a contract worker —

• to refuse to allow the contract worker to work

• in the terms or conditions on which the contract worker is allowed to work

• in access to any benefits associated with the contract work

• otherwise to the detriment of the contract worker.

Occupational licensing bodies

A body that has the power to confer an authorisation or a qualification for the carrying on of an occupation cannot use a spent conviction against a person —

• to deprive the person of the authorisation or qualification

• in setting the terms and conditions on which the person may hold the authorisation or qualification.

How to complain

If you believe that a person has discriminated against you in a way that is prohibited, you may lodge a complaint under the Equal Opportunity Act 1984 with the Commissioner for Equal Opportunity.

EXCEPTIONS

There are a number of exceptions to the above.

There is general exception for decisions as to bail for a court appearance.

The other exceptions relate to persons who are being considered for certain positions (for example, police or prison officers, school teachers and other school staff) or who have applied for certain authorisations (for example, security agents, child care or education and care service providers, casino employees). These exceptions are in Schedule 3 to the Act which was added by the Spent Convictions Regulations 1992. This should be referred to for particulars.

[Schedule 2 amended: Gazette 4 Nov 2005 p. 5319; 12 Dec 2014 p. 4720.]