Lawlink NSW: 2.7 Criminal Records

Report on the NSW Government's Implementation of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody

2.7 Criminal Records

Recommendation Number 93

Removal of past convictions from criminal records

That governments should consider whether legislation should provide, in the interests of rehabilitation, that criminal records be expunged to remove references to past convictions after a lapse of time since last conviction and particularly whether convictions as a juvenile should not be expunged after, say, two years of non- conviction as an adult.

Government’s original position: Supported
Revised government position: Supported
Agencies responsible for implementation: Attorney General’s Department

Implementation report
The primary purpose of the Criminal Records Act 1991 is to implement a scheme to limit the effect of a person’s conviction for a relatively minor offence, subject to the person completing a period of crime-free behaviour.

Under the Act, all convictions are capable of becoming spent except for:

convictions where a sentence of more than 6 months was imposed;
convictions for sexual offences;
convictions against bodies corporate; or
convictions prescribed by the regulations.

A conviction is deemed to be spent on completing the relevant crime free period which is 10 years, or 3 years in the case of convictions of the Children’s Court.

In March 1998, the Attorney General’s Department released a discussion paper canvassing possible reforms to the Act. Feedback was sought as to whether the convictions should be able to be spent where the sentence imposed was more than 6 months, and if so what should be the maximum sentence that may be imposed before a person loses the right to have their conviction spent.

Other issues canvassed included:

whether criminal charges, as opposed to criminal convictions, should be automatically expunged;
whether a person should be required to reveal a spent conviction, when questioned under oath;
whether a person whose spent conviction was wrongly publicised should have a right of redress, if they suffer actual loss as a result of the publication;
whether a shorter waiting period should apply to lesser convictions, such as those involving non-custodial orders; and
whether the legislation should be extended to also cover the expungement of criminal records.

It should be noted that the spending of a conviction, is different from that person’s criminal record being expunged. Applications for expungement are made to the Commissioner of Police. Expungements involve the physical destruction of the fingerprint card, photograph, and the physical deletion of the person’s criminal record in the Criminal Histories System. The Commissioner currently exercises an administrative discretion to expunge criminal histories having regard to the following general criteria:

if proceedings are dismissed or withdrawn or there is an acquittal;
after a conviction or finding that a charge has been proved and the sentence is deferred or suspended upon entering a recognisance; and
a period of 15 years has passed since the date of the conviction or finding during which time there have been no further convictions or findings.

The Attorney General’s Department is currently considering possible amendments to the Act, arising out of the review.

Implementation status
Partially implemented
Continued reporting

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The information contained on this page is not legal advice. If you have a legal problem you should talk to a lawyer before making a decision about what to do. The information on this page is written for people resident in , or affected by, the laws of New South Wales, Australia only.

most recently updated 20 August 1999