Many people are unsure about what a criminal record actually is, when a conviction is recorded, and whether old offences must always be disclosed. These questions often arise when applying for a job, travelling overseas, or applying for licences or security clearances. Queensland law recognises that, whilst criminal convictions can have serious consequences, people are also capable of rehabilitation and moving on from past mistakes.
Put simply, not all convictions follow you forever, and not all convictions need to be disclosed in every situation.
This article explains how criminal records work in Queensland, including recorded and unrecorded convictions, spent convictions, and when disclosure is required.
What is a criminal record?
A criminal record (also known as a criminal history) is an official record kept by police that shows offences for which you have been convicted. This can occur either because you have pleaded guilty or because you were found guilty by a court after a trial.
Having a criminal record can have lasting consequences and affect many aspects of your life. Prospective employers may take criminal history into account when making hiring decisions. Convictions can also impact visa applications, international travel, and eligibility for weapons licences or blue cards for working with children.
Recorded vs unrecorded convictions
Whenever a court makes a finding of guilt or accepts a plea of guilty, the offender is convicted.[1] However, the court does not always formally record that conviction. If a conviction is not recorded, it will generally not appear on most criminal history checks. It will, however, still be retained on police databases. If a conviction is formally recorded, it will appear on your criminal history though potentially not forever (see below).
In Queensland, courts generally have a discretion to decide whether or not a conviction should be recorded.[2] If a conviction is not recorded, you will generally be allowed to say that you have not been convicted of that offence. There are, however, some exceptions to this non-disclosure rule whereby in some instances you must disclose all convictions (whether or not recorded) (see below).
When will a court record a conviction?
The decision about whether to record a conviction is governed by section 12 of the Penalties and Sentences Act 1992 (Qld) (the PSA). The court is required to consider all the circumstances of the case, including (but not limited to):
- the nature of the offence;
- the offender’s character and age; and
- the impact that recording a conviction will have on the offender’s economic or social wellbeing, or chances of finding employment.[3]
There is no fixed formula. Courts weigh these factors, along with any other relevant considerations, depending on the circumstances of each case.[4]
Relevantly, if a court imposes a sentence of imprisonment, whether that sentence is to be served immediately, suspended, or as an intensive correction order, the PSA requires that a conviction be recorded.[5]
What is a spent conviction?
Even where a conviction is recorded, it does not necessarily remain on your criminal record forever. Under the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) (the Act), certain convictions become “spent” after a specified rehabilitation period. Once a conviction is spent, it generally does not appear on most criminal history checks, and you are usually not required to disclose it.
In Queensland, the rehabilitation period is generally:
- 10 years for adult convictions in the District or Supreme Court; or
- 5 years for other convictions, including those dealt with in the Magistrates Court or committed as a juvenile.[6]
The rehabilitation period commences from the date of conviction.
For a conviction to become spent, you must not be convicted of further offences during the rehabilitation period. If convicted of another offence, the rehabilitation period will restart from the date of the last conviction. However, minor or “simple” offences do not automatically reset the rehabilitation period unless the court orders otherwise.[7]
In Queensland, once the rehabilitation period expires, the conviction is automatically spent (subject to no further conviction).
Convictions that cannot become spent
Not all convictions are eligible to become spent. Under the Act, a conviction cannot become spent if:
- the sentence involved imprisonment for more than 30 months, including wholly suspended sentences or immediate release to parole;
- the conviction was for an offence committed by a corporation (company); or
- the conviction is for certain excluded offences, for example those requiring ongoing disclosure for specific professions or positions.
Convictions that have been quashed or set aside are automatically considered spent.[8]
Disclosure obligations and exceptions
Where the rehabilitation period for a conviction has expired and the conviction has not been revived, it is lawful to state that you have not been convicted of that offence.[9] In other words, you may lawfully deny the existence of the conviction. This includes under oath or affirmation and even in formal settings such as court proceedings, statutory declarations, or job applications.
However, like most things in the law, there are some important exceptions to the non-disclosure rule. Section 9A of the Act lists these exceptions. Certain professions such as solicitors, teachers, police officers, and politicians require disclosure of spent convictions when applying for employment.
Penalties for unlawful disclosure
It is an offence to contravene any provision of the Act, punishable by up to 100 penalty units ($16,690).[10] This includes disclosing a person’s spent conviction without their consent (unless it is under authority or permit),[11] or considering a person’s spent conviction when assessing their fitness (unless expressly required by law).[12]
Summary
The law in Queensland relating to criminal convictions and their disclosure can be complex.
In many situations, people are asked to disclose their criminal history. Care must be taken to understand exactly what is being asked, particularly where a conviction has not been recorded. In many circumstances, unrecorded convictions do not need to be disclosed.
Some organisations attempt to bypass these rules by framing questions differently. For example, you may be asked whether you have ever “pleaded guilty to” or “been found guilty of” an offence. This is a different question to whether you have a conviction. If you are unsure about your disclosure obligations, it is important to seek legal advice.
Get help from a criminal lawyer
If you are unsure how your past criminal history may affect your personal and professional life, our experienced Criminal Law team at Connolly Suthers can provide you with expert advice to help you better understand your rights and obligations. Get in touch with us to speak to our Townsville lawyers or learn more about how we can help you.
If you have any questions or need assistance, please contact us on (07) 4771 5664 or law@cosu.com.au
This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact Connolly Suthers Lawyers.
[1] Criminal Code Act 1899 (Qld) s 1.
[2] Penalties and Sentences Act 1992 (Qld) s 12(1).
[3] Ibid s 12(2).
[4] R v Brown; ex parte Attorney-General [1994] 2 Qd R 182 at 185 (Macrossan CJ).
[5] Penalties and Sentences Act 1992 (Qld) ss 111, 143, 152.
[6] Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) s 3.
[7] Ibid s 11.
[8] Ibid s 5(1).
[9] Ibid s 8.
[10] Ibid s 12.
[11] Ibid s 6.
[12] Ibid s 9.