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The High Court rules that a criminal record is not forever

Since 1989 the law has been that if a criminal conviction is a spent conviction, it is no longer disclosed on a person’s criminal record except in special circumstances.

This law applies in many situations where there is a requirement to provide a National Police Certificate, such as applications for employment, student placement, visas and adoption.

The High Court of Australia has now considered the law of spent convictions for the first time in an appeal against a banning order imposed by the Australian Securities and Investments Commission (ASIC) under s 80(1)(f) of the National Consumer Credit Protection Act 2009. This section permits ASIC to impose a banning order “if ASIC has reason to believe that the person is not a fit and proper person to engage in credit activities”.

In the decision of Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 (15 May 2019) – the High Court of Australia (Keifel CJ, Keane, Nettle JJ jointly, and Bell, Gageler, Gordon, Edelman JJ jointly), ruled that a spent conviction was not to be considered when forming a view about whether a person was a “fit and proper person to engage in credit activities”.

The spent convictions law

The law is found in Division 3 of Part VIIC of the Crimes Act 1914 (Cth) which was inserted in 1989 to remove most criminal convictions from a person’s searchable record. The Attorney-General (Mr N.A. Bowen) said in the second reading of the bill: “The purpose of the scheme is to prevent discrimination against someone … when that person has served his or her time and paid his or her debt to society.”

The law applies to both Commonwealth and State criminal convictions.

Under s 85ZM, a spent conviction is defined as: including both a conviction and a discharge without conviction, if a person has been charged with an offence and has been found guilty; and where the person has not been sentenced to imprisonment for the offence or has been sentenced to not more than 30 months imprisonment; and a ‘waiting period’ of more than 10 years has passed (for an adult) and 5 years (for a minor).

Not all offences which come within the definition become spent convictions. For example, sexual offences and offences against minors (under the age of 18 years) are never ‘spent’.

Under s 85ZX, if another offence is committed during the ‘waiting period’, then the earlier conviction will not be ‘spent’ until a ‘crime-free period’ of 10 years has passed from the later conviction.

A spent conviction will not appear on the National Police Certificate. Under s 85ZV and s 85ZW, a person is not required to disclose the fact they have been charged with, or convicted of, the offence if it is a spent conviction. Further, it is lawful for that person to claim that they have not been charged with or convicted of that offence.

There are special circumstances when spent convictions must be disclosed. These include applications for employment positions in aged care, teaching children, hospitals; and for certain permits, security clearances and accreditations.

The High Court Decision

Mr Frugtniet had a conviction and a ‘no conviction recorded’ on his criminal record:

  1. A conviction in the United Kingdom in 1978 of 15 counts of handling stolen goods, forgery, and obtaining property by deception and theft – he served two years of imprisonment; and
  2. A finding of guilty in the Broadmeadows Magistrates’ Court in Australia in 1997 for an offence of obtaining property by deception in relation to the issue of airline tickets – he was fined $1,000 but no conviction was recorded.

The High Court decided that because these items on his criminal record were spent offences, then they should not have been taken into account by ASIC as “evidence of dishonest conduct” when it determined that Mr Frugtniet was not a “fit and proper person to engage in credit activities”.

In particular, the Administrative Appeals Tribunal (AAT), which heard the appeal against ASIC’s refusal, was bound by Division 3 of Part VIIC of the Crimes Act 1914, because it was reviewing a decision of ASIC (which was bound by that provision):

[under] the AAT Act, where application is made to it … [the AAT] is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review [judgment, paragraph 51]

Conclusion

The decision of the High Court confirms that Division 3 Part VIIC of the Crimes Act 1914 applies as the Attorney-General intended, namely:

that a person whose conviction is spent is not required to disclose to any Commonwealth authority the fact that the person was charged with or convicted of the offence, and that a Commonwealth authority is prohibited from taking account of the fact that the person was charged with or convicted of the offence. [Judgment summary, paraphrasing paragraph 37]

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