Criminal Record, Recorded Convictions and your rights.

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What is a Criminal Record?

If you have appeared in Court and have been found guilty, or entered a plea of guilty to criminal charges then the formal record of those convictions is known as a Criminal Record. If you were charged by the police, but they withdrew the charges or you were found not guilty of the offence then these allegations or charges will not form part of your Criminal Record.

Who can access my Criminal Record?

Generally the police will not release your Criminal Record to anyone other than the Courts or Law Enforcement Agencies with our your consent. Queensland Police can release your Criminal Record to police from other states and territories without your consent. If an employer or volunteer body wanted to consider your Criminal Record they may only do so with your consent.

How long does a criminal conviction last?

Criminal Records do not necessarily have to last forever. In Queensland you do not have to disclose your criminal conviction if:

  • You were sentenced to less than 30 months imprisonment;
  • The prescribed rehabilitation period has elapsed (see below); and
  • You have not been convicted of another offence.

What is the prescribed time?

Section 3 of the Rehabilitation of Offenders Act (Queensland) 1986 sets out the prescribed rehabilitation period for both Indictable and Summary Offences:

  • An adult conviction on Indictment (District or Supreme Court Sentence) – 10 years; or
  • An adult conviction dealt with summarily (Magistrates Court) – 5 years.

Can the convictions on my Criminal History be revived?

The ‘rehabilitation period’ for both Indictable and Summary convictions can be revived under section 11 of the Rehabilitation of Offenders Act (Queensland) 1986, where there is a subsequent conviction for an offence,

  • whether in Queensland or another state, and
  • regardless of whether the rehabilitation period has elapsed or not.

The Act says that the rehabilitation period starts again following a subsequent conviction. This means that if you have previously been convicted of an indictable offence, your 10 year rehabilitation period commences from the date of your subsequent conviction.

The law around this area can often be quite technical and it is important that you properly consider what the Magistrate or Judge says to you at the time of the conviction.

I had ‘no conviction recorded’. Do I have a Criminal Record?

Generally the answer is no, but with a number of exceptions. You have still been convicted of the offence, but the Court has exercised it’s discretion not to formally record the conviction on your Criminal Record. Nonetheless the record still exists. If you were to appear in court on subsequent charges, the court will be provided with a record showing all of the charges, even though the criminal record will show that no conviction was recorded.

Where no conviction has been recorded then:

  • Generally you can say that you have no convictions;
  • You need to read carefully the question that is being asked of you;
  • Some organisations will ask you whether you have ever been charged with breaking the law, or whether you have been found guilty, pleaded guilty or been convicted. This is a very different question to have you got a Criminal Record.
  • For some Applications, such as an Application for a Blue Card, you will have to disclose that you have been convicted of certain offences, regardless of whether you have a recorded Criminal History.

Can the court use my Criminal Record where no conviction was recorded?

As discussed above the Court will be provided with your Criminal Record if you are charged with a further offence, even in circumstances where the original court ordered that no conviction be recorded. The Court will use your Criminal Record to consider:

  • Whether you should be granted bail;
  • What penalty should be imposed;
  • Whether a conviction should be recorded for the new offence; and
  • Whether some circumstances of aggravation are made out.

I was a participant in a declared Criminal Organisation.

The Commissioner of Police has a power to disclose your criminal history if you are, or have ever been a participant in a criminal organisation. To disclose the criminal history the Commissioner of Police be satisfied it is in the public interest to do so. This could include notifying other authorities or publishing your criminal history to the public. This will have an impact on whether or not there is a power to issue you with a consorting notice.

What if I believe I am being discriminated against because of my Criminal Record?

On 1 January 2020, Queensland’s Human Rights Act 2019 came into effect. It provides a dispute resolution process for dealing with human rights complaints and in some instances can assist you if you are being discriminated against because of your Criminal Record.

Where you believe you are being discriminated against you may be able to make a complaint to the Queensland Human Rights Commission.

You may also be able to make a complaint to the Australian Human Rights Commission if you consider that you are being discriminated against as a consequence of your Criminal Record. At first instance the Human Rights Commission will endeavour to mediate your matter. If they can not resolve it then they can prepare a report to the Government.

Does a criminal record mean I can’t get a blue card

You will need a blue card if you want to work or volunteer with children in Queensland.  The blue card agency will consider:

  • Your criminal record;
  • Disciplinary material held by professional organisations; and
  • Police investigations into allegations of child sex offences, regardless of whether charges were laid;

See our article on Blue Cards for further details.

Expunging Homosexual Convictions

Following on from the Queensland Law Reform Commissions 2016 report the government passed legislation permitting eligble applicants to expunge criminal convictions for historical homosexual offences. For more information see our bog post – expunging historical convictions.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

Liability limited by a scheme approved under professional standards legislation.

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