Case Law on Spent Convictions: Analysis

Under federal legislation, if a person's conviction for a Commonwealth (or Territory) offence is more than ten years old, the person is not required to disclose to any person, the fact that the person has been charged with, or convicted of, the offence. Further, if a person's conviction of a State (or foreign) offence is more than ten years old, the person is not required to disclose to any Commonwealth authority in a State (or in a foreign country), the fact that the person has been charged with, or convicted of, the offence.

Spent conviction rules are important to ensure that people are not tainted by the stigma associated with prior criminal conviction.  Spent conviction provisions also ensure that people have behaved lawfully for a substantial period of time before they are able to resume full participation in society.  Spent conviction laws also  operate in State and Territory jurisdictions in Australia.

The law governing spent convictions is particularly important to people seeking a federal professional licence, such as to be a tax agent, migration agent, or to provide credit services under federal law.  It is important because applicants for these licences need to demonstrate that they are a “fit and proper person” to hold such a licence.  A criminal conviction would ordinarily disqualify a person from complying with that requirement.

This paper explores the operation of the spent convictions legislation in federal law.  It is clear that federal legislation ensures that federal agencies cannot have regard to spent convictions when making a determination that a person is fit and proper.  However it is equally clear that federal criminal law authorises appellate tribunals, such as the Administrative Appeals Tribunal, to have regard to any matter that they think is relevant when considering an appeal from an unsuccessful applicant, and, paradoxically, that can include a person’s spent convictions. 

This anomalous position has been confirmed in a decision of the Federal Court and a decision of the Full Court of the Federal Court.  In practical terms, this undermines the efficacy of the federal spent convictions legislation, from the perspective of the person affected.  It means that if a person contests an agency determination that they are not a fit and proper person, the agency need only appeal to the Administrative Appeals Tribunal or a court, which can then have regard to the spent convictions as an otherwise relevant matter.  The spent convictions provision will therefore only be relevant to persons who seek to rely on it in circumstances where no appeal is taken.