Transitional provision for Spent Convictions Amendment Regulations 2023 7
Schedule 1
Use of this form 9
When application can be made 9
Witnessing the signature of applicant 9
Evidence of identity 10
Issue of certificate 11
Schedule 2
Notes
Compilation table 15
Defined terms
Spent Convictions Act 1988
Spent Convictions Regulations 1992
1. Citation
These regulations may be cited as the Spent Convictions Regulations 1992.
2. Commencement
These regulations come into operation on the day on which the Act comes into operation.
3. Minor punishment, amount prescribed (Act s. 3)
For the purposes of the definition of “minor punishment” in section 3 of the Act, the amount of $1 500 is prescribed.
[Regulation 3 inserted: Gazette 4 Nov 2005 p. 5318; amended: SL 2023/122 r. 4.]
[4. Deleted: Gazette 4 Nov 2005 p. 5318.]
5. Application form prescribed (Act s. 7(1))
The form of application set out in Schedule 1 is prescribed for the purposes of section 7(1) of the Act.
6A. Persons and laws prescribed (Act s. 28(2))
For the purposes of section 28(2) of the Act —
(a) each person specified in Column 2 of an item in the Table is prescribed in respect of the law specified in Column 3 of that item; and
(b) each law specified in Column 3 in the Table is prescribed.
Table
Column 1<br>Item
Column 2<br>Prescribed person
Column 3<br>Prescribed law
1.
The Commissioner for Fair Trading appointed under the Fair Trading (Australian Consumer Law) Act 1992 (Australian Capital Territory) section 32
Working with Vulnerable People (Background Checking) Act 2011 (Australian Capital Territory)
2.
The Commissioner of the NDIS Quality and Safeguards Commission referred to in the National Disability Insurance Scheme Act 2013 (Commonwealth) section 181C
National Disability Insurance Scheme Act 2013 (Commonwealth)
3.
The Children’s Guardian appointed under the Children’s Guardian Act 2019 (New South Wales) section 115(2)
Child Protection (Working with Children) Act 2012 (New South Wales)
4.
The Screening Agency as defined in the National Disability Insurance Scheme (Worker Checks) Act 2018 (New South Wales) section 4
National Disability Insurance Scheme (Worker Checks) Act 2018 (New South Wales)
5.
The Screening Authority established under the Care and Protection of Children Act 2007 (Northern Territory) section 196(1)
Care and Protection of Children Act 2007 (Northern Territory)
6.
The Screening Agency as defined in the National Disability Insurance Scheme (Worker Clearance) Act 2020 (Northern Territory) section 7(1)
National Disability Insurance Scheme (Worker Clearance) Act 2020 (Northern Territory)
7.
The chief executive referred to in the Disability Services Act 2006 (Queensland) section 40 and as defined in the Acts Interpretation Act 1954 (Queensland) section 33(11)
Disability Services Act 2006 (Queensland)
8.
The Queensland College of Teachers established under the Education (Queensland College of Teachers) Act 2005 (Queensland) section 229(1)
Education (Queensland College of Teachers) Act 2005 (Queensland)
9.
The chief executive referred to in the Working with Children (Risk Management and Screening) Act 2000 (Queensland) section 8 and as defined in the Acts Interpretation Act 1954 (Queensland) section 33(11)
Working with Children (Risk Management and Screening) Act 2000 (Queensland)
10.
The central assessment unit established under the Child Safety (Prohibited Persons) Act 2016 (South Australia) section 20(1)
Child Safety (Prohibited Persons) Act 2016 (South Australia)
11.
The central assessment unit established under the Child Safety (Prohibited Persons) Act 2016 (South Australia) section 20(1)
Disability Inclusion Act 2018 (South Australia)
12.
The Registrar appointed under the Registration to Work with Vulnerable People Act 2013 (Tasmania) section 11
Registration to Work with Vulnerable People Act 2013 (Tasmania)
13.
The Disability Worker Registration Board of Victoria established under the Disability Service Safeguards Act 2018 (Victoria) section 8
Disability Service Safeguards Act 2018 (Victoria)
14.
The Victorian Disability Worker Commission established under the Disability Service Safeguards Act 2018 (Victoria) section 21(1)
Disability Service Safeguards Act 2018 (Victoria)
15.
The Victorian Disability Worker Commissioner appointed under the Disability Service Safeguards Act 2018 (Victoria) section 26(1)
Disability Service Safeguards Act 2018 (Victoria)
16.
The Secretary as defined in the Worker Screening Act 2020 (Victoria) section 3(1)
Worker Screening Act 2020 (Victoria)
[Regulation 6A inserted: SL 2021/6 r. 4.]
6. Form of notice (Act s. 33(2))
The form of notice set out in Schedule 2 is prescribed for the purposes of section 33(2) of the Act.
7. Transitional provision for Spent Convictions Amendment Regulations 2023
(1) In this regulation —
amendment day means the day on which the Spent Convictions Amendment Regulations 2023 regulation 5 comes into operation;
conviction includes a conviction for an offence against Commonwealth law or the law of another State or of a Territory.
(2) In relation to a conviction incurred before amendment day, regulation 3 continues to apply as if it had not been amended by the Spent Convictions Amendment Regulations 2023 regulation 4.
[Regulation 7 inserted: SL 2023/122 r. 5.]
Schedule 1
[r. 5]
[Heading inserted: Gazette 1 Apr 2008 p. 1280.]
SPENT CONVICTIONS ACT 1988 — SECTION 7(1)
APPLICATION FOR CERTIFICATE THAT LESSER CONVICTION IS SPENT
Particulars of applicant —
SURNAME: .........................................................................................................<br>OTHER NAMES: ................................................................................................<br>ANY NAME PREVIOUSLY USED (ALIAS): ..................................................<br>DATE OF BIRTH: ......../......../........ PLACE OF BIRTH: .................................<br>RESIDENTIAL ADDRESS: ...............................................................................<br> ...............................................................................<br>POSTAL ADDRESS (If different from above): .................................................<br> .................................................
I apply to the Commissioner of Police for a certificate that any lesser Western Australian convictions that may be eligible in accordance with the Spent Convictions Act 1988 are spent.
Signature of applicant: ___________________________________
(To be signed in the presence of an authorised witness*)
see Information for Applicant
Declaration of authorised witness —
I declare that I have —
sighted original identification documentation that confirms the identity of the applicant; and
witnessed the applicant’s signature.
Signature of witness: ____________________________________
Full name of witness: ____________________________________
Authority of witness: ____________________________________
Date: / /
INFORMATION FOR APPLICANT
Use of this form
This form is only to be used for lesser convictions for offences against the law of Western Australia.
A lesser conviction is one for which imprisonment for one year or less, and a fine of less than $15 000, was imposed.
All other convictions only become spent by order of the District Court.
When application can be made
An application for a certificate that a lesser conviction is spent cannot be made until a period has expired after the conviction without any further conviction being incurred (unless no punishment or only a fine of $1 500 or less was awarded for the further conviction).
The period is 10 years plus any period of imprisonment relevant to the conviction.
There are rules in the Spent Convictions Act 1988 section 11 for working out this period.
The period is different if there is a subsequent conviction.
Witnessing the signature of applicant
The following persons are authorised to witness the applicant’s signature —
an Australia Post officer;
a police officer;
any other person listed in the Oaths, Affidavits and Statutory Declarations Act 2005 Schedule 2.
Evidence of identity
Identification documents to a value of 100 points, as set out below must be produced and sighted by the person witnessing the applicant’s signature. At least one identification document must include a photograph of the applicant.
Primary Identification
70 points for each document produced —
Birth certificate (not extract of birth)
Australian passport (current or expired within last 2 years)
Current overseas passport
Australian citizenship certificate.
Secondary Identification
Category 1
40 points for the first document produced;
25 points for each additional document produced —
Drivers’ licence with photo identity issued under the Road Traffic (Authorisation to Drive) Act 2008, or equivalent licence issued by another State or Territory
A current photo card as defined in the Western Australian Photo Card Regulations 2014 regulation 3
Licence with photo identity issued under the Firearms Act 2024, or equivalent licence issued by another State or Territory
Employee identity card (with photo identity) issued by a State or Commonwealth government department or agency
Photo identity card issued by a tertiary education institution
Learners’ permit issued under the Road Traffic (Authorisation to Drive) Act 2008, or equivalent permit issued by another State or Territory
Department of Veteran Affairs card
Centrelink or Social Security card.
Category 2
25 points for each document produced —
Proof of age card issued under the Liquor Control Regulations 1989 regulation 18B
Medicare card
Local government rates notice
Property lease/rental agreement
Property insurance papers
Motor vehicle registration or insurance papers
Professional or trade association card.
Category 3
25 points for each document produced —
(Each document must be from a different organisation)
The certificate will be posted to the postal address shown in the application. Should this change you should notify the Commissioner of Police.
[Schedule 1 inserted: Gazette 1 Apr 2008 p. 1280-3; amended: Gazette 27 Jun 2014 p. 2351; 10 Feb 2015 p. 621; SL 2023/122 r. 6; SL 2024/300 r. 10.]
Schedule 2
[Regulation 6]
SPENT CONVICTIONS ACT 1988
Notice under section 33(2)
THE EFFECT OF A CONVICTION BECOMING SPENT
The following is a summary of the legal effect of a conviction becoming spent under the Spent Convictions Act 1988.
REFERENCES TO CONVICTIONS IN STATE LAWS
A reference in a law of this State to a conviction of a person does not include a spent conviction.
DISCLOSURE
The conviction and the charge that led to it do not have to be disclosed by the person concerned or anyone else, except where required in court or tribunal proceedings, and even then the court or tribunal has to act to avoid or minimize publicity.
ACCESS TO CRIMINAL RECORDS
It is an offence for a person to obtain information about a spent conviction, or the charge that led to it, from official criminal records, unless the person has a lawful reason.
CHARACTER ASSESSMENT
A person who would otherwise be able under a law of this State to take into account a conviction or the charge that led to it when assessing a person’s character or fitness cannot do so in the case of a spent conviction.
DISCRIMINATION
Applicants for employment
A person from whom a person is seeking employment cannot use a spent conviction against the applicant —
• in arrangements made for deciding who should be offered employment
• in deciding who should be offered employment
• in the terms or conditions on which employment is offered.
Employees
An employer cannot use a spent conviction against an employee —
• in the terms or conditions of employment provided
• in access to opportunities for promotion, transfer, training or any other benefits
• to dismiss the employee
• otherwise to the detriment of the employee.
Persons who apply to be appointed, or who are appointed, as commission agents
The position is similar as for applicants for employment and employees.
Employment agencies
An employment agency cannot use a spent conviction to discriminate against a person in relation to any service that it provides —
• by refusing to provide the service
• in the terms or conditions on which the service is offered
• in the way in which it provides the service.
Unions and employer organisations
A union or employer organisation cannot use a spent conviction against a person —
• to reject an application for membership
• in setting the terms or conditions of admission to membership
• to take away membership or vary its terms
• in access to benefits provided
• otherwise to the detriment of the person.
Contract workers
A principal cannot use a spent conviction against a contract worker —
• to refuse to allow the contract worker to work
• in the terms or conditions on which the contract worker is allowed to work
• in access to any benefits associated with the contract work
• otherwise to the detriment of the contract worker.
Occupational licensing bodies
A body that has the power to confer an authorisation or a qualification for the carrying on of an occupation cannot use a spent conviction against a person —
• to deprive the person of the authorisation or qualification
• in setting the terms and conditions on which the person may hold the authorisation or qualification.
How to complain
If you believe that a person has discriminated against you in a way that is prohibited, you may lodge a complaint under the Equal Opportunity Act 1984 with the Commissioner for Equal Opportunity.
EXCEPTIONS
There are a number of exceptions to the above.
There is general exception for decisions as to bail for a court appearance.
The other exceptions relate to persons who are being considered for certain positions (for example, police or prison officers, school teachers and other school staff) or who have applied for certain authorisations (for example, security agents, child care or education and care service providers, casino employees). These exceptions are in Schedule 3 to the Act which was added by the Spent Convictions Regulations 1992. This should be referred to for particulars.
[Schedule 2 amended: Gazette 4 Nov 2005 p. 5319; 12 Dec 2014 p. 4720.]
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Notes
This is a compilation of the Spent Convictions Regulations 1992 and includes amendments made by other written laws. For provisions that have come into operation, and for information about any reprints, see the compilation table.
Compilation table
Citation
Published
Commencement
Spent Convictions Regulations 1992
26 Jun 1992 p. 2715‑22
1 Jul 1992 (see r. 2 and Gazette 26 Jun 1992 p. 2644)
Reprint 1: The Spent Convictions Regulations 1992 as at 12 Dec 2003
Spent Convictions Amendment Regulations 2005
4 Nov 2005 p. 5318‑19
4 Nov 2005
Spent Convictions Amendment Regulations 2007
1 Apr 2008 p. 1280-3
r. 1 and 2: 1 Apr 2008 (see r. 2(a)); Regulations other than r. 1 and 2: 2 Apr 2008 (see r. 2(b))
Reprint 2: The Spent Convictions Regulations 1992 as at 16 May 2008 (includes amendments listed above)
This work is licensed under a Creative Commons Attribution 4.0 International Licence (CC BY 4.0). To view relevant information and for a link to a copy of the licence, visit www.legislation.wa.gov.au.