61. Spent Convictions — Is This Conviction Spent? (Vic)¶
Scope and currency
Cheat sheet · Spent Convictions Act 2021 (Vic) · immediate/automatic spending from 1 Dec 2021, court-order scheme from 1 Jul 2022 · consolidated to v012 (23 Feb 2026)
Starting point: the Act reaches every conviction — imposed before or after commencement (s 6). A conviction becomes spent by one of three routes: immediately (s 7), automatically at the end of the conviction period (s 8), or by order on application to the Magistrates' Court (ss 11, 19). Run the gates in order; the first that fits decides the route.
The decision sequence¶
GATE 1 Immediate spending (s 7)
Is the conviction in a s 7 category? → Yes — spent on the day of conviction: (a) conviction not recorded by the court (see Sentencing Act 1991 (Vic) s 8); (b) a qualified finding of guilt under the CMIA (mental impairment / unfitness); © offence committed when under 15 — even a serious conviction; (d) only penalty is a fine imposed by the Children's Court; (e) an infringement conviction. → Conditions attached? where the penalty carries conditions (e.g. CCO, adjourned undertaking), not spent until the conditions are completed (s 7(2)). → No: go to Gate 2.
GATE 2 Serious conviction classification (s 3)
Is it a 'serious conviction' — any one limb below? → No — not serious: auto-spends at the end of the conviction period (s 8) → set the clock at Gate 3. → Yes — serious: does not auto-spend → application route only → Gate 4.
Serious conviction — any one limb (s 3)¶
| Limb | Threshold / meaning | Definition source |
|---|---|---|
| Custodial length | a term of imprisonment or detention of more than 30 months imposed | s 3 definition |
| Sexual offence | a conviction for a sexual offence | Criminal Procedure Act 2009 (Vic) s 4 |
| Serious violence offence | a conviction for a serious violence offence (e.g. murder, manslaughter, kidnapping, causing serious injury) | Serious Offenders Act 2018 (Vic) Sch 2 |
| GATE 3 The conviction-period clock (ss 9–10) | ||
| How long, and running from when? 5 years — a child (under 18 at the offence) or young offender (under 21 at sentencing); 10 years — any other person (s 9). Runs from the day of the finding of guilt (s 10(1)). → Fresh conviction during the period: the clock restarts — the period runs from the later conviction (s 10(2)). → Unless the new penalty is minor: no restart where it is a fine of ≤10 penalty units, restitution/compensation only, no penalty, or no conviction recorded (s 10(3)). |
GATE 4 Serious conviction → spent conviction order (ss 11, 19)
Is the serious conviction eligible to apply — and has the conviction period expired? Apply to the Magistrates' Court (a guardian may apply for a person with a disability). No fee currently prescribed. Cannot apply before the conviction period expires (s 11); may cover more than one conviction; a refused application bars re-application for 2 years unless new supporting information is produced. → Child / young offender: eligible for a serious conviction sentenced under the youth justice legislation. → Adult — sexual or serious violence offence: eligible only if no term of imprisonment or detention was imposed. → Adult — any other (serious) offence: eligible only if the term imposed was not more than 5 years (the 30-month–5-year band).
Some serious convictions can never be spent
Outside the s 11 eligibility bands there is no route to spent status — an adult sexual or serious violence conviction where any imprisonment was imposed, and any conviction where the term imposed exceeded 5 years. These neither auto-spend (serious, so s 8 does not apply) nor qualify to apply (s 11).
The application in practice (ss 12–18)¶
• Form (ss 12–13) in writing — the applicant's name, the conviction, rehabilitation material, any prescribed information / fee; the Court may require further information.
• Service & submissions (ss 14–15) serve the Attorney-General and Chief Commissioner of Police, who may make submissions (28-day notice of intention); if neither gives notice, the application may be determined without a hearing.
• Hearing (ss 16–17) the Court may hold a hearing — closed unless circumstances justify opening it; not bound by the rules of evidence; decides on substance, not technicalities. Order or refusal is sent to the applicant and the Chief Commissioner.
• Gatekeeping (s 18) the Court may refuse to accept an application that is vexatious, misconceived or non-compliant with s 12.
s 19 — what the Magistrates' Court weighs¶
• Nature, circumstances & seriousness of the offence.
• Impact on any victim of the offence.
• Personal circumstances of the applicant.
• Aboriginal or Torres Strait Islander considerations including over-representation and the impact of record disclosure on these communities.
• Age & maturity of the applicant when the offence was committed.
• Demonstrated rehabilitation of the applicant.
• Risk to public safety of making the order.
• Any other relevant matter the Court considers relevant.
Three routes at a glance¶
| Route | Applies to | Provision | When spent | Decided by |
|---|---|---|---|---|
| Immediate | a s 7 category (Gate 1) | s 7 | day of conviction (or when conditions completed, s 7(2)) | operation of law |
| Automatic | a conviction that is not serious and not immediately spent | s 8 | end of the conviction period (5 or 10 yrs) | operation of law |
| Order | an eligible serious conviction (Gate 4) | ss 11, 19 | when the Court so orders, after the conviction period | Magistrates' Court |
Effect once spent (s 20) & the disclosure offences (ss 23–24)¶
• No duty to disclose (s 20) a spent conviction does not form part of the criminal record; the person need not disclose it and must not be required or asked to disclose it; it is not revived by any later conviction.
• Unlawful disclosure (s 23) an offence to disclose spent-conviction information without lawful authority or the person's written consent — max 40 penalty units. Defence: all reasonable steps taken to avoid disclosure; a library exemption.
• Obtaining by fraud / dishonesty (s 24) an offence to obtain spent-conviction information by fraud or dishonesty — max 20 penalty units.
• Anti-discrimination spent conviction is a protected attribute — Equal Opportunity Act 2010 (Vic) s 6 (inserted by s 28); redress via a VEOHRC complaint or VCAT.
Where a spent conviction may STILL be used or disclosed (ss 21–22)¶
• Law enforcement, courts & corrections (s 21) police may disclose for law-enforcement purposes and put spent convictions on the LEAP prior-history sheet to a court; courts / tribunals may use them in proceedings and when publishing decisions; disclosure is also permitted under the Corrections Act 1986.
• Specified bodies & functions (s 22, Table 1) prescribed body + authorised function + enabling law — e.g. Working with Children Checks, some employment, licensing / registration (police; teaching — VIT; health-practitioner and legal-admission regulators; disability workers), family-violence information sharing, immigration.
• Prescribed persons / functions (s 22(2)) extended by regulation — check the Spent Convictions Regulations for the current prescribed list.
• Practical trap for child-related, vulnerable-person and law-enforcement roles a spent conviction can still surface on the relevant check — advise clients accordingly.
Overlays & cross-references¶
• Commonwealth convictions separate scheme — Part VIIC (ss 85ZL–85ZY) Crimes Act 1914 (Cth): automatic on completing a 10-year (5-year juvenile) crime-free waiting period, with its own exclusions. The Victorian Act does not spend Commonwealth convictions.
• Interstate convictions recognised as spent where already spent under the relevant State / Territory law (s 3 definition of spent conviction).
• Upstream — recording the conviction whether a conviction is recorded is a Sentencing Act 1991 (Vic) s 8 discretion; an unrecorded conviction is immediately spent (s 7(a)) — so the recording argument at sentence is the first line of defence.
• Retrospective the scheme reaches convictions from before 1 July 2022 (s 6).
2023 statutory review — not yet legislated
The November 2023 review made 25 recommendations (streamline the application, remove personal service, improve cultural safety, clarify 'conviction period' and aggregate-sentence treatment). None were enacted as at August 2026 — treat as reform-in-prospect, not law.
Thin case law
The s 19 discretion has little publicly reported authority (Magistrates' Court decisions are generally unreported and the scheme is young). Argue from the statutory s 19 criteria; verify any authority before citing it.
Currency watch¶
• 23 November 2021 — Spent Convictions Act 2021 (Vic) assented.
• 1 December 2021 — immediate (s 7) & automatic (s 8) spending commenced; applies retrospectively to earlier convictions (s 6).
• 1 July 2022 — court-ordered scheme (serious-conviction applications, ss 11–19) commenced.
• November 2023 — s 25 statutory review tabled (25 recommendations; not yet legislated).
• 23 February 2026 — current consolidated version (v012); consequential amendments only, core thresholds / periods / routes unchanged. Verify the live version and the Spent Convictions Regulations before relying.