A criminal conviction can have consequences that extend well beyond the sentence imposed by a court. It may affect employment opportunities, professional licensing, volunteering and even international travel, sometimes many years after the offence occurred.
However, Western Australian law provides a mechanism for certain convictions to become ‘spent’, limiting when they must be disclosed and how they can be used.
We speak with experienced Perth criminal lawyer Andrew Williams about how spent convictions work in Western Australia, the three main pathways available to adults and some common misconceptions about clearing a criminal record.
“A spent conviction doesn’t mean the offence has been erased from your history,” Williams explains. “What it does is restrict when that conviction needs to be disclosed, which can make a significant difference to someone’s future employment and other opportunities.”
What Is a Spent Conviction?
Under the Spent Convictions Act 1988 (WA), a spent conviction is a criminal conviction that generally no longer needs to be disclosed when a person’s character or fitness is being assessed, subject to certain exceptions.
Importantly, the conviction remains part of the person’s criminal history. It is not overturned or erased, but its disclosure and use are restricted by law.
A spent conviction will ordinarily not appear on a standard National Police Certificate issued for general purposes. However, it may still be disclosed or considered in circumstances where a legislative exception applies.
In Western Australia, there are three main pathways through which an adult can obtain a spent conviction:
- At sentencing: A court may make a spent conviction order when sentencing a person for an offence.
- For a lesser conviction: An eligible person may apply to the Commissioner of Police after a prescribed waiting period.
- For a serious conviction: An application may be made to a District Court judge after the required period has passed.
Each pathway has different eligibility requirements, and obtaining a spent conviction is not necessarily automatic.
Applying for a Spent Conviction at Sentencing
The first opportunity to obtain a spent conviction is when the court sentences a person for an offence.
Under section 45 of the Sentencing Act 1995 (WA), a court may make a spent conviction order if satisfied that the offender is unlikely to commit such an offence again and, having regard to either the trivial nature of the offence or the offender’s previous good character, should be relieved immediately of the adverse effects of the conviction.
Whether an order is granted is entirely at the court’s discretion.
“Being a first-time offender doesn’t automatically entitle someone to a spent conviction,” Williams says. “The court needs to be satisfied that the legal requirements are met, and the material presented at sentencing can be important to that decision.”
An application will generally need to address the nature of the offence, the person’s criminal history, rehabilitation, remorse and the practical consequences of having a conviction recorded.
There are also restrictions on when an order can be made. A spent conviction order is not available where the person is sentenced to an intensive supervision order, suspended imprisonment, conditional suspended imprisonment or immediate imprisonment.
Even where a spent conviction order is granted, it does not remove other penalties imposed by the court. Fines, community orders, licence disqualifications and compensation orders may still apply.
Lesser Convictions: Applying After the Waiting Period
For people who did not receive a spent conviction order at sentencing, it may be possible to apply later.
Under section 7 of the Spent Convictions Act 1988 (WA), a person with an eligible lesser conviction may apply to the Commissioner of Police after the prescribed waiting period has passed.
If the statutory requirements are satisfied, the Commissioner must issue a certificate declaring the conviction spent.
A lesser conviction is defined under section 10 of the Act and generally refers to a conviction that does not fall within the definition of a serious conviction and does not involve life imprisonment.
Importantly, the classification depends on the sentence actually imposed, rather than simply the maximum penalty available for the offence.
The prescribed waiting period is generally 10 years plus any relevant term of imprisonment imposed.
Further offending can complicate this calculation, potentially affecting when the waiting period begins or when multiple convictions become eligible.
Serious Convictions: Applying to the District Court
For more serious convictions, the process is different.
Under section 6 of the Spent Convictions Act 1988 (WA), an application must be made to a District Court judge after the prescribed waiting period has passed.
A serious conviction generally refers to a conviction where a sentence of more than one year’s imprisonment or a fine of $15,000 or more was imposed.
Convictions involving a sentence of life imprisonment cannot become spent under these provisions.
The prescribed period is ordinarily 10 years plus the full term of imprisonment imposed for the conviction, regardless of how much of that sentence was actually served.
Unlike the administrative process for eligible lesser convictions, an application involving a serious conviction requires the District Court to exercise its discretion.
The judge may consider a range of factors, including the time that has passed since the conviction, its impact on employment, the applicant’s personal circumstances and the broader public interest.
If an application is refused, another application generally cannot be made for at least two years.
What Does a Spent Conviction Mean for Disclosure?
One of the main benefits of a spent conviction is that it limits the circumstances in which a person must disclose their criminal history.
For many ordinary employment applications and general police checks, a spent conviction will not need to be disclosed.
However, there are important exceptions.
Spent convictions may still be disclosed or considered in certain court and bail proceedings, applications for law enforcement or corrections roles, some positions involving children or vulnerable people, and particular security-related licensing processes.
The precise requirements depend on the role, the type of check being conducted and the legislation that applies.
“One of the biggest misunderstandings is that a spent conviction means you never have to disclose it again,” Williams explains. “There are exceptions, particularly for certain occupations and licensing requirements, so it’s important to understand what applies to your situation.”
A spent conviction also does not necessarily remove information held in private databases, published media reports or overseas records.
This distinction can be particularly relevant for people applying for professional registration, security clearances or visas to travel internationally.
Common Misconceptions About Spent Convictions
Despite the availability of spent convictions in Western Australia, there are several misunderstandings about how the scheme operates.
A conviction automatically becomes spent after 10 years
This is not generally the case in Western Australia. Although a prescribed waiting period applies to older convictions, a formal application is usually required before the conviction can be declared spent.
The passage of time alone does not necessarily change its status.
First-time offenders automatically receive spent convictions
Having no previous criminal record can be relevant when a sentencing court considers a spent conviction order, but it does not guarantee one.
The court must consider the statutory requirements and the circumstances of the particular offence.
A spent conviction completely clears your criminal record
A spent conviction restricts disclosure; it does not erase the conviction from every record.
Certain government agencies, courts and authorised organisations may still have access to the information, and publicly available material relating to the original proceedings may remain accessible.
A spent conviction removes the original penalty
A spent conviction does not reverse the sentence imposed by the court. Any fines, disqualifications or other orders remain subject to their own legal requirements.
Why the Timing of an Application Matters
The point at which a person seeks a spent conviction can influence the options available.
For someone who is still before the court, the possibility of obtaining a spent conviction order should ideally be considered before sentencing.
“If someone wants the court to consider a spent conviction at sentencing, it’s important that the application is properly prepared,” Williams explains. “Waiting until after sentence may mean having to rely on a different process, with different requirements and waiting periods.”
For older convictions, the first step is establishing whether the conviction is classified as lesser or serious, calculating the relevant waiting period and determining which application process applies.
These distinctions are particularly important where a person has multiple convictions or has received a sentence of imprisonment.
A Spent Conviction Offers a Second Chance, Not a Clean Slate
The spent conviction scheme recognises that the consequences of a criminal conviction should not necessarily follow a person indefinitely, particularly where they have demonstrated rehabilitation and remained free from further offending.
For eligible individuals, obtaining a spent conviction can reduce some of the barriers associated with employment, professional opportunities and participation in the community.
However, the scheme is not designed to erase criminal history altogether. The law balances the interests of rehabilitation with circumstances in which disclosure remains necessary, including particular positions of responsibility and public safety considerations.
The distinction between lesser and serious convictions, the relevant waiting periods and the discretion exercised by courts all make eligibility more complicated than simply waiting for a certain number of years to pass.
Ultimately, understanding these requirements is essential. Whether a conviction can be spent immediately at sentencing or only after a formal application years later, the outcome depends on the applicable legislation, the sentence imposed and the individual’s circumstances.
