How do I get a copy of my criminal record?
A National Police Certificate (NPC), often referred to as a 'police check', provides a national summary of an individual's disclosable offender history. It is generally requested by organisations as one part of the process to ensure the integrity of staff or volunteers.
National Police Certificate Application forms can be downloaded and completed on line at: http://www.police.sa.gov.au/sapol/services/information_requests/police_checks.jsp
Fees apply and are gazetted by the SA Government. Applicants who are unable to complete an on line form can attend a police station and request a hard copy form.
What information does a person’s criminal record show?
South Australia Police (SAPOL) record both personal information and details about charges and convictions on individual criminal records. The information shown includes:
- Offender’s full name
- Alias (if any)
- Residential address
- Personal description (hair and eye colour, height, identifying marks and build)
- Date of birth
- Offences with which a person has been charged (i.e. arrests)
- All court appearances (including court appearances as a juvenile)
- Whether a person was convicted of any offences and details of these offences, including date of conviction and whether conviction was recorded
- Details of sentences imposed
- Other information including specific departmental records, outstanding warrants, paedophile restraining orders, intervention orders, diversions, cautions and expiable matters.
Note: there is often a time lapse between when a conviction is recorded by the courts and the updating of SAPOL’s criminal records databases. As a result the NPC can only reflect the accuracy and completeness of these records up to the date of issue.
SA Police are bound by the Spent Convictions Act 2009 (SA) when determining what to release on a NPC. Under the Act, it is an offence to release information regarding the convictions of a person if those convictions are deemed to be spent under the Act. The Act defines a conviction as: a formal finding of guilt by a Court; or a finding by a Court that an offence has been proved.
A spent conviction is one that cannot be disclosed or taken into consideration. Often the outcome for a matter is "without conviction" or "no conviction recorded". As these are findings by a Court they still meet the definition of conviction, but they are taken to be immediately spent. Other eligible convictions become spent following a ten year qualification period if no further offences are committed, in South Australia or elsewhere. For juveniles, a five year qualification period applies.
For further information see Spent Convictions below.
Who can see my criminal record/history?
You may view your own personal history but access to these records can only be obtained by someone else (for example, an employer) with your permission. Personal history may also be released to approved organisations and government departments that have entered into a Memorandum of Understanding for the release of personal information.
How long does it take to get a National Police Certificate?
Requests for National Police Certificates usually take between 5 to 15 working days.
Who is eligible for a free police check?
Fee waivers apply only to unpaid South Australian volunteers working with approved Volunteer Organisation Authorisation Number (VOAN) organisations. The cost of VOAN police checks is funded by the South Australian government. VOAN organisations qualify for volunteer fee waivers because they provide services to vulnerable groups within the community. The VOAN is a secure number and must remain secure within an organisation to prevent illegitimate usage.
For more information click on the following link - National Police Checks .
Legislation: Spent Convictions Act 2009 (SA)
What is a spent conviction?
A spent conviction is a conviction that no longer has any effect. Spent convictions do not appear on a police records check and do not have to be disclosed when questions are asked about a person’s criminal history [s 10]. Under the Spent Convictions Act 2009 (SA), certain convictions will become spent if there has been no re-offending within a specified time period. Convictions can also become spent if they are quashed or a pardon is granted [s 4].
In addition, under s 4(1a), where there has been a formal finding of guilt or a finding an offence proved, but no conviction is recorded against the person, then the finding, will be taken to be immediately spent.
What types of convictions can be spent?
Apart from those convictions that are immediately spent, under section 5(1) are two types of convictions that can become spent:
- A conviction for an eligible adult offence
- A conviction for an eligible juvenile offence
An eligible adult offence is an offence committed by an adult for which no sentence of imprisonment is imposed or a sentence of less than 12 months imprisonment is imposed.
An eligible juvenile offence is an offence committed as a child for which no sentence of imprisonment is imposed or a sentence of less than 24 months imprisonment is imposed.
What type of convictions cannot be spent?
- A conviction of a body corporate
- A conviction of a class prescribed by the regulations
- A conviction for a sex offence unless the offence is an eligible sex offenceAn eligible sex offence includes offences where no sentence of imprisonment was imposed; or an offence that was constituted by consenting adults; or offences constituted by consenting people of the same sex where it would have not been an offence had they not been the same sex, and atleast one of them is 16 or 17 years of age, and none of them is younger, and the person involved was not in a position of authority in relation to the other person engaged in the activity.
What is the qualification period before a conviction can become spent?
Under s 7, apart from a sex offence, the qualification period for an eligible juvenile offence (other than where a person was dealt with as an adult) is five years from the relevant day for the conviction for the offence. In any other case the qualification period is ten years.
Under s 8A, there is an additional step to make a conviction spent for an eligible sex offence, that is, that a qualified magistrate must also make an order that the conviction is spent. There are several factors that the magistrate must take into account when making such an order and these are provided for in s 8A(5). Such an order can not be made by the magistrate if the same order has been refused by a magistrate within the preceding two years [s 8A(2)(b)]. An application under s 8A of the Act must comply with Form 110 [see Magistrates court Rules 1992 (SA) r 61.01].
What is the effect of committing another offence during a qualification period?
If a person commits another offence during the qualification for their first offence, the time that has run towards the qualification period for the first offence is cancelled and the date of the second conviction becomes the new relevant day for the first conviction [s 7(2)].
For example: 42 year old Oliver was convicted for a charge of carry an offensive weapon on 12 January 2005. He subsequently commits an offence of disorderly conduct and is convicted of this on 12 January 2011. The time that has run so far in his qualification period for the offensive weapon conviction (6 years) is cancelled and the new relevant day for calculating the qualification period for this offence becomes the date of conviction for the second offence, that is, 12 January 2011 (so it will be 10 years from that date, 12 January 2021).
What is the effect of committing a further offence after a conviction has become spent?
A conviction for an offence that has been spent is not revived by a conviction for a later offence committed outside of the qualification period for the first offence [s 9].
Does the Spent Convictions Act apply to convictions from other jurisdictions?
The Spent Convictions Act 2009 (SA) applies to convictions for offences against the laws of South Australia and against any other law [s 6]. However an application to have an eligible sex offence spent cannot be made for a conviction in another jurisdiction [s 8A(3)].
In the case of convictions for offences against the laws of a recognised jurisdiction (another State or the Commonwealth) the mutual recognition principle applies. This means that a conviction for an offence against a law of a recognised jurisdiction that is spent under the corresponding law of that jurisdiction will be taken to be spent for the purposes of South Australian law. Similarly, a conviction for an offence against a law of a recognised jurisdiction that is not spent (or has ceased to be spent) under the corresponding law of that jurisdiction, will be taken not to be spent for the purposes of the Act.
With regard to overseas jurisdictions, the Act applies with such changes as are necessary to enable the provisions to apply to those convictions in a way that corresponds as closely as possible to the way that it applies to convictions for offences against the laws of South Australia. If an offence has no correspondence to an offence against a law of South Australia, then the conviction is immediately spent.
Other effects of a spent conviction
If a conviction becomes spent, this does not affect the enforcement of any proceedings relating to:
- A fine or other sum imposed;
- A breach of a condition imposed;
- The imposition or accumulation of demerit points; or
- The operation of any disqualification or other prohibition imposed with respect to the spent conviction [s 5(4)].
Under schedule 1 of the Act, a number of agencies are exempted from the provisions that make it an offence to access information about spent convictions. The agencies include:
- Justice agencies (for example: the Australian Federal Police, police force of a State, Director of Public Prosecutions for the Commonwealth or a State, or Department for Correctional Services);
- Commonwealth agencies (for example: an intelligence or security agency, a person making a decision under the Migration Act 1958 (Cth), or AUSTRAC);
- Judicial authorities;
- The Parole Board;
- Assessment of suitability of persons appointed or being considered for appointment as judicial and associated officers (magistrates, justices of the peace);
- Enquiries and assessments into the fitness of a person to have guardianship or custody of a child or a person seeking employment in the care of children;
- Enquiries and assessments into the fitness of a person to have guardianship of an aged person or person with a disability or seeking to undertake work that involves the care of elderly or disabled persons;
- Activities associated with statutory character tests for licensing; and
- Firefighting, police and correctional services.
However many of these exclusions do not apply if the conviction has been quashed; or the person has been granted a pardon for the offence; or is immediately spent under s 4(1a) (see above). However the exclusions for justice agencies, designated judicial authorities or the Parole Board still apply [see s 13(3a)].
Additionally, under s 13A, a person in relation to whom a conviction for an offence is spent may apply to a qualified magistrate for an order that some of these exclusions do not apply in relation to the offence. These applications are limited to the exclusions relating to care of children, care of vulnerable people and activities associated with a character test (police checks). An application under s 13A must comply with Form 110 [see Magistrates Court Rules 1991 (SA) r 61.01].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.