current to March 2022

What is a Criminal Record

A criminal record is an official record of a conviction against your name, and is stored in the Australian national criminal database. If you have been found not-guilty of an offence, nothing is recorded against you.

However, even if you are found guilty of an offence, the courts are empowered to make a non-conviction order under s 17 of the ACT’s Crime (Sentencing) Act 2005. In deciding whether to make a non-conviction order, the court must take into account your character, age, health, the seriousness of the offence and extenuating circumstances. A non-conviction order will not be recorded against your name.

How Long Your Criminal Record Lasts

In the ACT, the Spent Convictions Act 2000 allows some convictions to become ‘spent’, and relieve you of many duties to disclose your criminal record. If you were not dealt with by an adult in relation to the conviction, the conviction is ‘spent’ if you have a crime-free period of 5 years; 10 years if you were dealt with as an adult (s 13(1)).

During this crime free period, you must not be subject to a control order, convicted of an offence punishable by imprisonment, or in prison because of a conviction (s 13(2)). The crime-free period will reset if such circumstances arise.

If you have been convicted of a traffic offence, non-traffic offences are disregarded in calculating the crime-free period (s 14(2)). Likewise, conviction for a non-traffic offence will have traffic offences disregarded in calculating the crime-free period (s 14(2)).

The Spent Convictions Act 2000 will also apply to Commonwealth, State and foreign convictions (s 9). This means Commonwealth, State and foreign convictions may be ‘spent’ as explained above and be removed from your ACT criminal record.

However, some convictions cannot be ‘spent’ under the Act (s 11(2)). These include convictions with an imprisonment sentence longer than 6 months and conviction for a sexual offence (other than sexual offences dealt with as a juvenile, with less than 6 months imprisonment). These convictions will have a permanent stay on your criminal record.

What Happens When a Conviction is Spent?

Once a conviction has become ‘spent’, you are not required to disclose your spent conviction to anyone, and queries into your criminal history is not taken to include you spent conviction (s 16).

However, exemptions exist where you are seeking employment in a variety of jobs, including as a police officer, teacher, aged-care provider, and disability worker among others found in s 19.

It also becomes an offence for records of your past convictions to be disclosed without lawful authority (s 17). A person must also not dishonestly obtain information about your spent convictions (s 18).

Rights to Privacy

Your criminal record is considered to be sensitive information, and is protected under the Privacy Act 1988. In the ACT, your information is also protected under the Information Privacy Act 2014. Public sector agencies are required to follow Territory privacy principles (TPP), which are designed to protect the security and integrity of personal information.

If you believe a government agency has mishandled your personal information, you are entitled to lodge a complaint with the Australian Information Commission at oaic.gov.au/privacy/privacy-complaints.

Protection Against Discrimination

A spent conviction is considered a protected attributed under the ACT’s Discrimination Act 1991 (s 7(1)(k)). This means your spent conviction is an irrelevant criminal record and cannot be taken into account by an employer when determining your employment suitability.

Complaints about unfair discrimination on the basis of an irrelevant criminal record can made to the ACT Human Rights Commission at hrc.act.gov.au/complaints/