Applying for a new job can be a daunting experience, particularly when the applicant has a conviction for a criminal offence but what if the conviction is very old and minor? Is it necessary to disclose it?
A NSW conviction is “spent” after a period of ten (10) years from the date of conviction, provided that no further criminal offences are committed during that time. The “crime free period” for offences by children is three (3) consecutive years from the date of conviction.
A conviction is capable of becoming “spent” if:
The conviction did not have a prison sentence of more than 6 months;
The conviction is not a sexual offence; or
The conviction is not one imposed against a corporation.
So, must an applicant disclose a spent conviction? The answer is no. A spent conviction means it doesn't exist anymore and is therefore not required to be disclosed.
A spent conviction should also not bar an individual from gaining a travel visa because a spent conviction will not appear on any criminal record. If someone is questioned about their criminal history, this refers only to offences which are not spent. In fact it is an offence for someone to disclose another person’s spent convictions or to improperly obtain information relating to another person’s spent convictions.
However, the circumstances are different for people who are judges, magistrates, justices of the peace, police officers, members of staff of Corrective Services NSW, teachers and teacher's aides as well as people applying for a "Working with Children Clearance". Convictions relating to arson are also required to be disclosed to be a firefighter.
If you know someone with a conviction who is applying for a job then it is best that they obtain legal advice regarding any obligation they might have to make a disclosure.