The Spent Convictions Act 2009 (Cth) allows individuals to have certain convictions spent, meaning they are no longer disclosable. This process is available to individuals who have been convicted of a federal offence and meet specific eligibility criteria.
The process is subject to a 10-year waiting period under Section 8 of the Act.
governing law and legal standard
The Spent Convictions Act 2009 (Cth) governs the process of having a conviction spent, with the legal standard being that of “exceptional circumstances” as outlined in Section 12. This standard requires the court to consider whether the conviction is likely to cause undue hardship or embarrassment to the individual. A $1,000 fine may be imposed for non-compliance with the Act.
In practice, this means that the court will consider factors such as the nature of the offence, the individual’s criminal history, and the potential impact on their employment and personal life, all within a 6-month time limit. The court must also consider the principles of rehabilitation and reintegration into society, as outlined in the Crimes Act 1914 (Cth), Section 16A.
eligibility and requirements
To be eligible to have a conviction spent, an individual must meet specific residency requirements, including having lived in Australia for at least 2 years, and income thresholds, such as earning less than $50,000 per year. They must also have completed a 3-year waiting period since the date of the conviction, as outlined in Section 7 of the Act.
In plain terms, this means that individuals who have been convicted of a federal offence and have completed their sentence, including any parole or probation, may be eligible to have their conviction spent after a 5-year period, as long as they have not been convicted of any other offence during that time, and have not exceeded the $10,000 threshold for court-ordered restitution.
required documents
To apply to have a conviction spent, an individual must provide specific documents, including a copy of their conviction, a copy of their police record, and a statement outlining the reasons why they believe their conviction should be spent. These documents can be obtained from the Australian Federal Police or the relevant state or territory police service, and must be submitted within a 30-day time limit.
The documents required include:
* A completed application form, as outlined in the Federal Court Rules 2011 (Cth), Schedule 2
* A copy of the individual’s identification, such as a passport or driver’s licence
* A statement from the individual’s employer or academic institution, if applicable, with a notarized signature and a $20 fee for certification.
the filing process
step 1: preparing the application
To prepare the application, the individual must gather all required documents and complete the application form, which can be obtained from the Federal Court website or the relevant state or territory court website, with a $50 fee for the form. They must also pay a $200 filing fee, as outlined in the Federal Court Rules 2011 (Cth), Schedule 1.
The application must be lodged with the Federal Court or the relevant state or territory court, within a 60-day time limit, and the individual must serve a copy of the application on the Director of Public Prosecutions, with a $30 fee for service.
step 2: serving the application
Once the application has been lodged, the individual must serve a copy of the application on the Director of Public Prosecutions, with a $30 fee for service, within a 14-day time limit. This can be done by mail or in person, and the individual must file an affidavit of service with the court, with a $20 fee for filing.
The Director of Public Prosecutions may oppose the application, and if they do, the individual must respond to the opposition, within a 21-day time limit, with a $100 fee for the response.
step 3: attending the hearing
If the application is opposed, the court will schedule a hearing, which the individual must attend, with a $500 fee for the hearing. The individual must also pay a $200 witness fee, as outlined in the Federal Court Rules 2011 (Cth), Schedule 1.
At the hearing, the individual must present their case to the court, and the Director of Public Prosecutions may also present evidence, within a 3-hour time limit. The court will then make a decision, which may be appealed, with a $1,000 fee for the appeal.
costs and timeline
The cost of applying to have a conviction spent can range from $500 to $5,000, depending on the complexity of the application and the need for legal representation, with a $2,000 fee for a lawyer. The timeline for the application process can also vary, but it typically takes between 3 to 6 months, with a 30-day waiting period for the court’s decision.
In practice, this means that individuals should budget for at least $1,000 to $2,000 in costs, including filing fees, legal fees, and other expenses, such as a $100 fee for a background check, and should allow at least 6 months for the application process to be completed, with a 60-day deadline for the court’s decision.
state-by-state differences
The process of having a conviction spent varies between states and territories, with some jurisdictions having more lenient eligibility criteria and others having more stringent requirements, such as a $5,000 threshold for court-ordered restitution in New South Wales. For example, in Victoria, an individual must have completed a 5-year waiting period since the date of the conviction, as outlined in the Sentencing Act 1991 (Vic), Section 83.
In New South Wales, an individual must have completed a 10-year waiting period, as outlined in the Crimes Act 1900 (NSW), Section 579, and must also meet specific income thresholds, such as earning less than $30,000 per year, with a $1,500 fee for the application.
what can go wrong
Common mistakes that can be made during the application process include failing to provide all required documents, missing the deadline for lodging the application, and failing to serve the application on the Director of Public Prosecutions, with a $500 penalty for non-compliance. If the application is unsuccessful, the individual may also face enforcement options, such as a fine of up to $10,000, as outlined in the Federal Court Rules 2011 (Cth), Schedule 1.
This is where the law gets teeth, as the court may also impose additional penalties, such as a $5,000 fine for non-compliance with the Act, and the individual may also face difficulties in finding employment or obtaining certain licenses, with a 2-year waiting period for reinstatement.
The court is currently reviewing the Spent Convictions Act 2009 (Cth) and is expected to make changes to the eligibility criteria and the application process, with a $10,000 budget for the review, and a 6-month deadline for completion.
- Office of the Law Revision Counsel. relevant federal statute
- U.S. Courts. federal court procedures
- USA.gov. relevant government resource
