Spent convictions: how long does a criminal conviction last in Queensland?

Introduction

As noted in our article on non-recorded convictions, having a criminal conviction can have a prolonged and profound impact on your life that extends far beyond the punishment imposed by a court.

This is quite unfortunate, as one of the purposes of the criminal justice system is that a court will impose a punishment that is just and final in all the circumstances. It is also a principle that those convicted of offences should be rehabilitated, and are encouraged and even expected to resume being law-abiding and productive members of society upon completion of the imposed punishment.

Yet, whenever you are taking a major step in your life, such as a job application or an application for a specific licence, you could be asked about your previous criminal history. Fortunately, our legal system allows convictions to become “spent” after a period of time has lapsed, meaning that they no longer have to be disclosed.

This article applies only to the disclosure of convictions in Queensland. The laws vary between States and Commonwealth offences. If your conviction was not recorded, then you should read our article on non-recorded convictions here.

The Act governing the disclosure of historical offences is the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), (“the Act”). The Act applies to offences committed within other Australian jurisdictions as well, however only to the extent in determining whether they must be disclosed in Queensland.

For example, if you were convicted of an offence in Victoria, this article will apply if you now live in Queensland and are asked a question within this state about your criminal history.

 

I was convicted of an offence in the Magistrates Court, when do I no longer have to disclose a conviction?

If:

• you were convicted In the Magistrates Court of Queensland or equivalent court in another jurisdiction;
• 5 years ago;
• the term of imprisonment imposed was 30 months or less, or no term of imprisonment was imposed;
• any other order of the court in relation to that sentence, such as restitution, has been completed;
• you have not been convicted of another offence within the 5 year period; and
• none of the exceptions apply;

Your conviction will be a spent conviction and you will not be required to disclose it while you are within Queensland. In fact, for most purposes, it will be unlawful for any other person to disclose your conviction as well.

 

I was convicted of an offence in the District or Supreme Court, when do I no longer have to disclose a conviction?

The law in relation to District or Supreme Court convictions is similar, but requires a period of 10 years lapse before a conviction becomes spent.

If:

• you were convicted In the District Court of Queensland, Supreme Court of Queensland or equivalent court in another jurisdiction (eg, the County Court of Victoria);
• 10 years ago;
• the term of imprisonment imposed was 30 months or less, or no term of imprisonment was imposed;
• any other order of the court in relation to that sentence, such as restitution, has been completed;
• you have not been convicted of another offence within the 10 year period; and
• none of the exceptions apply;

Your conviction will be a spent conviction and you will not be required to disclose it while you are within Queensland. For most purposes, it will be unlawful for any other person to disclose your conviction as well.

 

What if I was convicted as a child?

If you were convicted of an offence as a child, then the rules applying to Magistrates Court convictions apply.

If:

• you were convicted as a child;
• 5 years ago;
• the term of imprisonment imposed was 30 months or less, or no term of imprisonment was imposed;
• any other order of the court in relation to that sentence, such as restitution, has been completed;
• you have not been convicted of another offence within the 5 year period; and
• none of the exceptions apply;

Your conviction will be a spent conviction and you will not be required to disclose it while you are within Queensland. For most purposes, it will be unlawful for any other person to disclose your conviction as well.

 

What are the exceptions?

There are numerous exceptions under the Act, and it is impractical to exhaustively list all of them here. Section 9A lists specific positions, offices or statuses held where all or certain convictions (depending on the position, office or status) must always be disclosed.

This includes those working within the Queensland Police Service, justices of the peace, teachers and other employees of the Department of Education, TAFE staff, security guards, politicians, and many more.

Under s 7, there are circumstances where other people can discuss your conviction. This includes lawyers or legal academics compiling judicial reports and making commentaries for the sake of professional or educational purposes. Police officers may also discuss these where usually required to as part of their duties.

A person has obtained access to my full criminal history. Are they permitted to use information about spent convictions in making a decision against me?

Section 9 imposes a general duty to disregard spent convictions. However, exceptions are provided where you are expressly required by law to make a disclosure of your criminal history, the person in possession of your history is expressly required by law to have regard to your criminal history, or another exemption applies.

Situations where this may arise include applying for a licence for a regulated profession or occupation, where the assessor must find you a fit and proper person. Whether you are required to a make disclosures in such circumstances is a matter of interpretation of the Act which governs the profession or occupation to which you are applying.

Engineers, for example, are not required to disclose spent convictions and the assessor may not have regard to these under the Professional Engineers Act 2002 (Qld).

 

Conclusion

The disclosure of historic criminal convictions, especially in the context of employment or applications for licenses relating to a profession or occupation, is a complex area of law.

While this article is intended to provide you with a guide of the general principles that operate in Queensland, it is not to be considered legal advice and may not cover important aspects that apply to your individual circumstances.

If you have concerns about your historic criminal convictions, you should seek our legal advice.

Potts Lawyers have Criminal Law Offices on the Gold Coast and in Brisbane. Call now on (07) 5532 3133.