An Overview of the Commonwealth Spent Conviction Legislation
Updated: Feb 8
In this article, we provide a brief overview of the law pertaining to when convictions are spent for commonwealth offences.
Spent Conviction Legislation differs between Commonwealth and Victoria
The Spent Conviction Act 2021 (Vic) governs state offences. In a previous article, we discussed the application of the Victorian Act. This article focuses on Commonwealth offences. The Victorian system allows for some without conviction outcomes to be immediately spent, thus removing any waiting period - a significant point of difference between the State and Commonwealth spent conviction regimes.
What law underpins the Commonwealth Spent Conviction system?
Part VIIIC of the Crimes Act 1914 (Cth) is headed 'Pardons, Quashed Convictions, and Spent Convictions).
Section 85ZM defines 'conviction' and 'spent conviction' in these terms:
1) For the purposes of this Part, a person shall be taken to have been convicted of an offence if:
(a) the person has been convicted, whether summarily or on indictment, of the offence;
(b) the person has been charged with, and found guilty of, the offence but discharged without conviction; or
(c) the person has not been found guilty of the offence, but a court has taken it into account in passing sentence on the person for another offence.
(2) For the purposes of this Part, a person's conviction of an offence is spent if:
(a) the person has been granted a pardon for a reason other than that the person was wrongly convicted of the offence; or
(b) the person was not sentenced to imprisonment for the offence, or was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended.
What becomes apparent under section 85ZM is that conviction includes an outcome where a conviction is not recorded (i.e. a finding of guilty). As discussed below, upon application of the waiting period for a 'conviction' a person who receives a without conviction outcome suffers the same potential social stigma as the offender who receives a recorded outcome, in that both are published, and capable of being disclosed.
What is the waiting period before a conviction becomes spent?
Under the Act, 'waiting period' is defined in these terms:
(a) if the person convicted of the offence was dealt with as a minor in relation to the conviction--the period of 5 years beginning on the day on which the person was convicted of the offence; or
(b) in any other case--the period of 10 years beginning on the day on which the person was convicted of the offence.
Once the waiting period expires the conviction becomes spent and does not require a formal application.
A Without Conviction Outcome is better than Conviction, but Diversion is better still
The non-application of the Victorian spent conviction regime to Commonwealth offences raises some important considerations for both lawyer and client during negotiations with the prosecution.
Where there is a combination of State and Commonwealth offences the withdrawal of Commonwealth offences becomes important as a without-conviction outcome for a State offence will be spent far quicker than for a commonwealth offence. Whilst the utility of a diversion over a without conviction outcome may be narrowing (on account of the Spent Conviction Act 2021 (Vic) for Commonwealth offences, the preceding discussion highlights that a diversion is far superior to a without conviction outcome (for example a 19B bond under the Crimes Act 1914 (Cth).
Contact Our Office for Advice and Representation
If you've received charges (State or Commonwealth offences) contact our office on 03 9668 7600 to make an appointment to discuss your situation. We provide an initial consultation free of charge whereby we will review your situation and explain your options.