Purpose & Objects of the Act
A person who has been convicted of an offence against the law of Western Australia or of a foreign country and who has not reoffended during a specified period and shows to be rehabilitated may be entitled to having that conviction spent under the Spent Convictions Act 1988 (WA) (‘the Act’).
The underlying purpose of the Act is one of rehabilitation. The fundamental objective or purpose of the Act is to encourage offenders to rehabilitate themselves by holding out the prospect that the legal and social stigma associated with a conviction may, to a considerable extent, be removed or, at least ameliorated, after the passage of what the legislature regards as appropriate period of time.
The legislative purpose is confirmed by the then Attorney-General’s observations in the second reading speech of the Spent Convictions Bill (WA). The then Attorney-General, the Honourable J M Berinson MLC said:
[T] Government remains committed to the fundamental proposition that criminal offenders must be appropriately punished. However, it is also believed that people should have the opportunity to be relieved of the social stigma and other consequences of a criminal record where that is justified by blameless conduct for a lengthy period. This is in the interests not only of the offenders concerned but also of the general community as well. (Western Australia, Parliamentary Debates Legislative Council, 22 September 1988, p 3283.)
The Attorney-General also noted that the Bill, as it was then, aimed to provide “some positive encouragement and incentives for previous offenders to refrain from further unlawful conduct.” (Western Australia, Parliamentary Debates, Legislative Council, 22 September 1988, p 3283.)
Nothing in the Act indicates that the public interest requires that offences of a particular kind, other than those sentenced to life imprisonment, need fall outside the scope of its ordinary operations.
Types of Convictions
The Act defines two types of convictions – lesser convictions and serious convictions.
Lesser convictions are convictions in respect of which the sentence imposed is imprisonment for one year or less; or a fine of less than $15 000. However, if a person who has incurred a lesser conviction that is not spent incurs a serious conviction or a sentence of life imprisonment, the lesser conviction thereafter becomes a serious conviction.
A lesser conviction incurred by a person becomes spent when on application being made in the prescribed form by that person to the Commissioner of Police, the Commissioner issues to the applicant a certificate that the conviction is spent. An application for a lesser conviction to become spent may not be made until the prescribed period for that conviction has expired. The Commissioner of Police must issue a certificate if the application conforms with this Act.
Serious convictions are any conviction in respect of which the sentence imposed is imprisonment for more than one year or for an indeterminate period; or a fine of $15 000 or more. The application for a serious conviction to become spent must be made to the District Court and may not be made until the prescribed period for that conviction has expired.
The prescribed period for a conviction is generally 10 years plus the period of imprisonment, unless it falls under an exception outlined in the Act. If any such imprisonment is for an indeterminate period, the period of 10 years commences with the day on which the person is discharged from that sentence; and the period of imprisonment is the actual period served. In all other cases where a sentence of imprisonment is imposed the period of 10 years commences with the day on which the conviction is incurred; and the period of imprisonment (if any) is the period imposed, regardless of the period actually served.
For example: if a person is sentenced to two years imprisonment, the conviction is deemed to be a serious conviction and the prescribed period will be 12 years from the date the conviction was entered.
If a person has any previous convictions, the prescribed period for the latest conviction and any previous conviction is the longer or longest of the prescribed periods for all those convictions; and that period runs from the time of the latest conviction. This does not include a minor punishment which means a fine not exceeding $100.00 or no punishment.
For example: A person is sentenced to 6 months imprisonment for Offence A, the sentence is a lesser conviction. 5 years later the person incurs another conviction for Offence B and is sentenced to 2 years imprisonment. The conviction on Offence A becomes a serious conviction and the prescribed period for all convictions is 12 years from the date the conviction on Offence B was entered.
The prescribed period for a conviction will only be 3 years if the conviction is for an offence that involves cannabis under the Misuse of Drugs Act 1981 sections 5(1)(d)(i) or 7B(6); or section 6(2), but does not involve a cannabis plant under cultivation, cannabis resin or any other cannabis derivative. A conviction in this case cannot have been incurred before the commencement of the Cannabis Law Reform Act 2010 Part 4.
If the application for a serious conviction to become spent is refused, a person must wait 2 years before re-applying.
Lesser Conviction to become Spent
A National Police Certificate application incorporates a request for the WA Police Force to spend any eligible WA Convictions. This means that any time a person applies for a National Police Certificate the WA Police Force will review the convictions and their eligibility to become spent under the Spent Convictions Act 1988. Alternatively, a separate spent conviction application form can be downloaded from the Western Australian Police Force website.
Serious Conviction to become Spent
Section 6 of the Spent Convictions Act 1988 (WA) (‘the Act’) confers the power on a District Court Judge to make an order declaring that a conviction is spent.
To make an application the first steps is to file a Notice of Motion, an affidavit, criminal history and any affidavits of people who have given references or reports in support of the application. After the Court registry receives the application they will provide a Court stamp on the documents. They will then check when a judge is available to hear the application and list it on this date. The stamped copy of the Notice of Motion and any supporting documents will then need to be served on the Commissioner of Police.
There are a number of factors that a Judge takes into account when deciding if a serious conviction is to become spent, so it is important that any supporting document relates to these factors.
Factors to be taken into Account
An order to make a serious conviction spent is at the discretion of the Judge and that discretion must be exercised having regard to:
- Length and kind of sentence in respect of the conviction;
- Length of time since the conviction was incurred;
- Whether the convictions prevents or may prevent engaging in employment;
- Circumstance of the applicant at the time of the offending;
- Circumstance of the applicant at the time of the application;
- Nature and seriousness of the offence;
- Circumstance surrounding the commission of the offence; and
- Whether there is any public interest to be served in not making the order.
The Court are bound to take into account these factors, but this list is not exhaustive.
The Court in exercising its discretion must also have regard to the underlying rehabilitative objective of the Act. Whether and to what extent the applicant has rehabilitated themselves is also one of the circumstances of the applicant at the time of the application. The question that follows that is whether and to what extent the applicant poses a risk of reoffending.
Acknowledgment and Risk of Reoffending
The question of whether the applicant has properly acknowledged their wrongdoing would be relevant to a question of risk of reoffending. The risk of reoffending needs to be considered in circumstances where a person has been convicted of offences many years ago, served their sentence, and have potentially undertaken counselling, support or rehabilitation and had not reoffended over a period of time.
There would have to be clear findings by the Court as to whether, and to what extent, the applicant poses a continued risk of reoffending as one of the relevant circumstances of the applicant at the time of the application.
The right to enter a foreign country will, of course, depend upon, amongst other things, the operation and application of the foreign country’s laws with respect to its entry and visa requirements and related matters. If and to the extent that those laws operate to give favourable regard to a person who, despite conviction, has a spent conviction order in this State, then that may be seen as one of the beneficial effects and seen as the benefits of the rehabilitative process which the Act intended to foster.
Rule of Evidence
In determining an application for a spent conviction, the Judge is not bound by the rules of evidence and may inform themselves on any manner in such manner as they think fit.
Spent Conviction Order
Having a conviction spent means that a person may not have to disclose that they were charged with and convicted of an offence. In some situations, spent convictions will have to be disclosed including, but not limited to:
- Reporting obligations;
- Applying for certain jobs, including as a police, prison or transport officer;
- Work in certain places, including schools, hospitals and child care centres;
- Applying for special licences, such as security agents, child care providers, casino employees;
- Applying to have firearms;
- Applying for an Australian visa.
For the full list of exceptions requiring disclosure see the end of the Spent Convictions Act 1998 (WA).
Spent convictions remain part of a person’s private criminal record kept by the police. It will appear on the History for Court, but it will not be included as a disclosable conviction on a National Police Certificate. As spent convictions remain part of a person’s criminal history, they can be taken into account when police or a court are considering bail or sentence. Spent convictions are also considered when applying for a Working with Children Check.
It is against the law for current or potential employers, unions, associations, licencing boards or professional regulators to discriminate against a person because of spent convictions.
Convictions can carry a heavy burden and generate unwanted stigma. Applications to make a serious conviction spent involve significant time and require specific consideration around necessary documentation to support the application and meet the legal requirements. Having convictions made spent can be a huge weight off the shoulders of a person and allow a person to live their life conviction free.
Callum Parker, Lawyer
1 WHW v Commissioner of Police  WASCA 153 .
2 Spent Convictions Act 1988 (WA) s 10.
3 Spent Convictions Act 1988 (WA) s 7.
4 Spent Convictions Act 1988 (WA) s 9.
5 Spent Convictions Act 1988 (WA) s 11(3).
6 Spent Convictions Act 1988 (WA) ss 3, 11(4).
7 Spent Convictions Act 1988 (WA) s 11(6).
8 Spent Conviction Act 1988 (WA) s 6(2).
9 Spent Convictions Act 1988 (WA) s 6(1).
10 Spent Convictions Act 1988 (WA) s 6(4).
11 WHW v Commissioner of Police  WASCA 153 , -.
12 WHW v Commissioner of Police  WASCA 153 .
13 WHW v Commissioner of Police  WASCA 153 .
14 Spent Convictions Act 1988 (WA) s 6(4)(d); WHW v Commissioner of Police  WASCA 153 .
15 WHW v Commissioner of Police  WASCA 153 -.
16 Spent Convictions Act 1988 (WA) sch 1 cl 4.