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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Spent Convictions Bill 2019
TABLE OF PROVISIONS
Clause Page
Part 1--Preliminary 1
1 Purposes 1
2 Commencement 2
3 Definitions 2
Part 2--Spent convictions 5
Division 1--Convictions automatically spent by operation of
this Act 5
4 Convictions to which this Division applies 5
5 When a conviction is spent under this Division 5
6 Convictions in other jurisdiction 6
Division 2--Convictions spent by court order 6
7 Application for conviction to be spent 6
8 Order declaring conviction to be spent 7
Division 3--Subsequent conviction 8
9 Spent conviction not revived 8
Part 3--Effect of a conviction becoming spent 9
10 Spent convictions to be disregarded 9
11 Unlawful disclosures 9
12 Improperly obtaining information 10
13 Other offences 11
Part 4--Exclusions 12
14 Exclusions relating to courts 12
Part 5--General 13
15 Regulations 13
Schedule 1--Specified day 15
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Clause Page
Endnotes 17
1 General information 17
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PARLIAMENT OF VICTORIA
Introduced in the Council by Fiona Patten
Spent Convictions Bill 2019
A Bill for an Act to limit the effect of a person's conviction for certain
offences if the person remains offence-free for a certain period,
including prohibiting the disclosure of that conviction
and for other purposes.
The Parliament of Victoria enacts:
Part 1--Preliminary
1 Purposes
The main purposes of this Act are--
(a) to provide that certain convictions are
5 considered to be spent automatically after
a specified waiting period if the convicted
person is not convicted of a subsequent
offence; and
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Part 1--Preliminary
(b) to enable a convicted person to apply for
other convictions to be declared spent in
certain circumstances if the person is not
convicted of a subsequent offence; and
5 (c) to provide that spent convictions do not form
part of the person's criminal history; and
(d) to prevent certain disclosures of information
relating to spent convictions.
2 Commencement
10 (1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 1 March 2020, it comes into
operation on that day.
15 3 Definitions
In this Act--
child, in relation to a person who has been
convicted of an offence, means a person who
was under the age of 18 years at the time of
20 the commission of the offence;
conviction means a finding by a court that a
person is guilty of an offence--
(a) whether the offence is indictable or
summary; and
25 (b) whether or not a conviction is recorded
by the court;
court includes tribunal;
law enforcement agency means--
(a) Victoria Police; or
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Part 1--Preliminary
(b) the Australian Federal Police within
the meaning of the Australian Federal
Police Act 1979 of the Commonwealth;
or
5 (c) the police force or police service
(however described) of another State
or a Territory; or
(d) the Australian Criminal Intelligence
Commission established under the
10 Australian Crime Commission
Act 2002 of the Commonwealth; or
(e) the Independent Broad-based
Anti-corruption Commission
established under section 12 of
15 the Independent Broad-based
Anti-corruption Commission
Act 2011; or
(f) the Director of Public Prosecutions; or
(g) any other authority or person
20 responsible for the investigation or
prosecution of offences against the
laws of the State, any other State or a
Territory or the Commonwealth that
is prescribed for the purposes of this
25 definition;
minor offence means--
(a) an offence where, on conviction, the
offender is discharged without penalty;
or
30 (b) an offence where, on conviction, the
only penalty imposed on the offender
(disregarding any demerit points that
may apply) is--
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Part 1--Preliminary
(i) a fine not exceeding $500; or
(ii) an order under the Sentencing
Act 1991 adjourning a proceeding
and releasing the offender if
5 any payment that the offender
undertakes to make in relation to
the order does not exceed $500; or
(iii) an order under the Children,
Youth and Families Act 2005
10 placing the offender on probation
or releasing the offender on a
youth supervision order;
public entity has the same meaning as in the
Public Administration Act 2004;
15 specified day, in relation to a conviction set out in
Column 2 of the Table in Schedule 1, means
the day set out in Column 3 of the Table that
corresponds to the conviction;
spent, in relation to a conviction, means--
20 (a) spent as a result of the operation of
Division 1 of Part 2; or
(b) declared to be a spent conviction under
section 8;
waiting period, in relation to a conviction, means
25 the period--
(a) beginning on the day on which the
person is convicted; and
(b) ending on the specified day for the
conviction.
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Part 2--Spent convictions
Part 2--Spent convictions
Division 1--Convictions automatically spent by
operation of this Act
4 Convictions to which this Division applies
5 (1) This Division applies to any conviction other
than--
(a) a conviction for which a prison sentence of
6 months or more has been imposed; or
(b) a conviction of a body corporate; or
10 (c) a conviction for a prescribed offence.
Note
If a prison sentence of more than 6 months is imposed for
a conviction, the person convicted may apply to the court
under Division 2 for that conviction to be spent after the
15 relevant waiting period.
(2) This Division applies to a conviction whether
or not it is a conviction imposed before, on or
after the day on which this Division comes into
operation.
20 5 When a conviction is spent under this Division
(1) Subject to section 6, a conviction is spent by
operation of this Division on the specified day
for that conviction unless the person, during the
waiting period for the conviction--
25 (a) is convicted of an offence other than a minor
offence; or
(b) is in prison or detained under the Children,
Youth and Families Act 2005 because of a
conviction for any offence or is unlawfully at
30 large.
(2) A waiting period may commence before the day
on which this Division comes into operation.
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Part 2--Spent convictions
(3) A conviction must be disregarded for the purposes
of subsection (1)(a) if--
(a) the conviction is quashed or set aside; or
(b) the conviction is for an offence in respect of
5 which the person has been pardoned.
6 Convictions in other jurisdiction
(1) A conviction by a court in another jurisdiction for
an offence committed in that jurisdiction is taken
to be a spent conviction if--
10 (a) it is a spent conviction (however described)
under a corresponding law of that
jurisdiction; or
(b) it would be a spent conviction under this
Act if the offence had been committed in
15 Victoria and dealt with by a court in Victoria
under laws and in a manner that correspond
most closely to those under and in which the
offence was dealt with by the court of the
other jurisdiction.
20 (2) If an offence against the laws of an overseas
jurisdiction has no correspondence to an offence
against a law of this jurisdiction, the conviction of
the person for the offence is immediately taken to
be a spent conviction.
25 Division 2--Convictions spent by court order
7 Application for conviction to be spent
(1) Subject to subsection (2), if a person is convicted
of an offence for which a prison sentence of
6 months or more has been imposed, the person
30 may, after the waiting period for the conviction
expires, apply for an order declaring the
conviction to be a spent conviction to--
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Part 2--Spent convictions
(a) if the conviction was imposed by the
Supreme Court, the Supreme Court; or
(b) in any other case, the County Court.
(2) A person may not make an application under
5 subsection (1) if--
(a) the conviction is a conviction for a
prescribed offence; or
(b) the conviction is a conviction of a body
corporate; or
10 (c) the person has been convicted of any
subsequent offence other than a minor
offence; or
(d) a court has refused to make an order under
section 8(1) in respect of the conviction
15 within the preceding 2-year period.
(3) A conviction must be disregarded for the purposes
of subsection (2) if--
(a) the conviction is quashed; or
(b) the conviction is for an offence in respect of
20 which the person has been pardoned.
8 Order declaring conviction to be spent
(1) On an application made in accordance with
section 7, a court may order a conviction to be a
spent conviction if the court is satisfied that it is in
25 the interest of justice to do so.
(2) In determining whether or not it is in the interest
of justice to make an order under subsection (1),
the court must have regard to the following--
(a) the length and kind of sentence imposed for
30 the conviction;
(b) the nature and seriousness of the offence;
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Part 2--Spent convictions
(c) the length of time since the conviction was
imposed;
(d) whether the conviction prevents or may
prevent the applicant from engaging in a
5 particular profession, trade or business or in
particular employment or voluntary work;
(e) the applicant's circumstances, including at
the time of the commission of the offence
and at the time of the application;
10 (f) the circumstances surrounding the
commission of the offence;
(g) the impact that the offence had on any
victim of the offence;
(h) whether the offence has ceased by operation
15 of law to be an offence;
(i) any other matter the court considers relevant.
(3) The court may make an order under subsection (1)
whether or not the conviction was imposed before,
on or after the day on which this section comes
20 into operation.
Division 3--Subsequent conviction
9 Spent conviction not revived
A conviction which is spent, or taken to be spent,
in accordance with this Part is not revived by a
25 subsequent conviction.
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Part 3--Effect of a conviction becoming spent
Part 3--Effect of a conviction
becoming spent
10 Spent convictions to be disregarded
If a conviction of a person is spent--
5 (a) the person is not required to disclose
information about the spent conviction to
any person; and
(b) a person's criminal history is taken not to
include the spent conviction, but to include
10 only the person's convictions that are not
spent; and
(c) in applying an Act or a subordinate
instrument to the person--
(i) a reference to a conviction (however
15 expressed) is taken not to refer to the
spent conviction, but to refer only to the
person's convictions that are not spent;
and
(ii) a reference to the person's character or
20 fitness (however expressed) does not
allow or require the spent conviction to
be taken into account.
11 Unlawful disclosures
(1) A person who has access to records of convictions
25 kept by or on behalf of a public entity must not,
without lawful authority, disclose to any other
person information concerning a spent conviction
held in those records without the consent of the
convicted person.
30 Penalty: 50 penalty units.
(2) It is not an offence under subsection (1) for an
archive or library, or an employee of an archive
or library, to make available to a member of the
public or to another archive or library, in
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Part 3--Effect of a conviction becoming spent
accordance with the normal procedures of the
archive or library, material that is normally
available for public use and that contains
information about a spent conviction.
5 (3) It is not an offence under subsection (1) for a
law enforcement agency in the exercise of its
functions or duties, or an officer or employee of
a law enforcement agency in the exercise of the
officer's or employee's functions or duties, to
10 make information about a spent conviction
available to another law enforcement agency or
to a court.
(4) It is not an offence under subsection (1) for a
court in the exercise of its functions or duties, or
15 an officer or employee of a court in the exercise
of the officer's or employee's functions or duties,
to make information about a spent conviction
available to a member of the public in accordance
with the normal procedures of the court.
20 (5) It is a defence to a charge under subsection (1) for
the person charged to show that the person acted
honestly and reasonably believed that--
(a) the person had lawful authority to disclose
the information; or
25 (b) the conviction had not been spent; or
(c) the convicted person had consented to the
disclosure of the information.
12 Improperly obtaining information
A person must not fraudulently or dishonestly
30 obtain information about a spent conviction from
records of convictions kept by or on behalf of a
public entity.
Penalty: 50 penalty units.
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Part 3--Effect of a conviction becoming spent
13 Other offences
(1) A person must not threaten to disclose information
about another person's spent conviction.
Penalty: 50 penalty units.
5 (2) A person must not take a spent conviction into
account for a purpose not authorised by this Act.
Penalty: 50 penalty units.
(3) Unless authorised to do so under this or another
Act, a person must not require another person,
10 as a condition of a contract or an agreement, to
disclose information relating to a spent conviction.
Penalty: 50 penalty units.
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Part 4--Exclusions
Part 4--Exclusions
14 Exclusions relating to courts
(1) Section 10 does not apply to proceedings before
a court, including the giving of evidence, or the
5 making of any decision of a court.
(2) If a court admits evidence about a spent
conviction, the court must take all steps that are
reasonably available to the court to prevent or
minimise publication of that evidence.
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Part 5--General
Part 5--General
15 Regulations
(1) The Governor in Council may make regulations
for or with respect to any matter or thing required
5 or permitted by this Act to be prescribed or
necessary to be prescribed to give effect to this
Act.
(2) The regulations--
(a) may be of general or limited application; and
10 (b) may differ according to differences in time,
place or circumstance; and
(c) may confer a power or impose a duty on a
specified person or class of persons; and
(d) may apply, adopt or incorporate any matter
15 contained in any document whether--
(i) wholly or partially or as amended by
the regulations; or
(ii) as in force at a particular time or as
amended from time to time; and
20 (e) may leave anything for the approval or
satisfaction of a specified person or class
of persons; and
(f) may leave any matter or thing to be, from
time to time, determined, applied, dispensed
25 with or regulated by the Minister or the
Secretary; and
(g) may provide in a specified case or class of
cases for the exemption of persons or things
or a class of persons or things from any of
30 the provisions of the regulations whether
unconditionally or on specified conditions
and either wholly or to such an extent as is
specified; and
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Part 5--General
(h) may impose penalties not exceeding
20 penalty units for a contravention of the
regulations.
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Schedule 1--Specified day
Schedule 1--Specified day
Section 3
Table
Item Conviction Specified day
1 Finding of guilt for an The day on which the period
indictable offence committed ending 10 years after the day
by a person other than a child on which the person is
in respect of which a convicted of the offence
conviction is recorded expires
2 Finding of guilt for a summary The day on which the period
offence committed by a person ending 5 years after the day on
other than a child in respect of which the person is convicted
which a conviction is recorded of the offence expires
3 Finding of guilt for an offence The day on which the period
committed by a child in ending 3 years after the day on
respect of which a conviction which the child is convicted of
is recorded the offence expires
4 Finding of guilt by a court, The day on which the order is
other than the Children's made
Court, for an offence in
respect of which a conviction
is not recorded and the court
orders the dismissal of the
charge for the offence
5 Finding of guilt by a court, The day on which the period
other than the Children's ending 5 years after the day on
Court, for an offence in which the person is convicted
respect of which a conviction of the offence expires
is not recorded and the court
orders the person to pay a fine
6 Finding of guilt by a court, The day on which the period
other than the Children's ending 5 years after the day on
Court, for an offence in which the person is convicted
respect of which a conviction of the offence expires
is not recorded and the court
makes a community correction
order
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Schedule 1--Specified day
Item Conviction Specified day
7 Finding of guilt by the The day on which the order is
Children's Court for an made
offence in respect of which a
conviction is not recorded and
the Children's Court orders the
dismissal of the charge for the
offence and does not order the
child to give an accountable
undertaking
8 Finding of guilt by the The day on which the period
Children's Court for an ending 3 years after the day on
offence in respect of which a which the child is convicted of
conviction is not recorded and the offence expires
the Children's Court orders the
dismissal of the charge for the
offence and orders the child to
pay a fine or give an
accountable undertaking
9 Finding of guilt by the The day on which the period
Children's Court for an ending 3 years after the day on
offence in respect of which a which the child is convicted of
conviction is not recorded and the offence expires
the Children's Court places the
child on probation or releases
the child on a youth
supervision order
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Endnotes
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
By Authority. Government Printer for the State of Victoria.
591PM51B.I-4/2/2019 17 BILL LC INTRODUCTION 4/2/2019
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