A conviction can become spent if:

  • an individual is crime free and not in prison for 10 years as an adult;
  • there is a finding that an offence has been proved, or that a person is guilty of an offence, but there is no conviction (for example, the offender is put on a good behaviour bond, intervention program, or other Court conditions);
  • there is an order of the Children’s Court dismissing a charge and administering a caution; or
  • the conviction is of an offence that has ceased, by operation of law, to be an offence.

Under the Criminal Records Act 1991 (NSW), individuals with spent convictions are not required to disclose any information regarding their spent conviction, and they do not need to refer to their prior conviction as a conviction for the purposes of character or fitness tests. Therefore, employers may not even be aware of the conviction during the recruitment process. However, if employers do become aware of a prior conviction that is now spent, there are obligations regarding how that person is to be treated.

Irrelevant criminal record

Spent convictions, and convictions that have not been spent and still appear on an individual’s criminal record may constitute an “irrelevant criminal record” and fall under the definition of discrimination for the purposes of the Australian Human Rights Commission Act 1986 (Cth) (the “AHRC Act”) and the Australian Human Rights Commission Regulations 2019 (Cth) (the “AHRC Regulations”).

Both the AHRC Act and the AHRC Regulations do not define an “irrelevant criminal record”, but it is generally understood to mean an individual’s criminal history that does not relate to the employment role or duties.

For example, if a role required a substantial level of integrity and trust, then an individual’s criminal history of dishonesty offences may be considered relevant. However, the same criminal history would be irrelevant for a role that did not require such integrity.

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