QLD Spent Conviction - Living in QLD with Convictions in NSW?

[Tryingtobebetter]

18 years ago, I was charged in NSW for an assault and was given a 9-month suspended sentence. I am deeply regretful of my past actions and have remained out of trouble since.

Currently, I live in QLD and have for the past 10 years. Does the QLD spent conviction scheme apply to my conviction for disclosure purposes?

I completed a national police check with QLD police in 2018 with no disclosures, however, I have recently completed another one for standard work purposes and it has come up with my assault disclosures.

I am confused as to why one would have no disclosures and the other does? The check is not for working with children, etc. I have filled a dispute on this do I have any grounds?

My understanding is that each state releases their disclosures on your name, obviously, my conviction is not spent under the NSW spent conviction legislation as a suspended sentence is considered a jail sentence. But I reside in QLD, so whilst living and working in QLD would not the QLD legislation apply which is spent if not sentenced to more than 30 months jail?

This is impacting my employment in QLD and I now have two conflicting police clearance certificates.

Any comments in relation to my query would be greatly appreciated.

 

[Scruff]

however I have recently completed another one for standard work purposes and it has come up with my assult disclosures

What kind of work was this for?

 

[Tryingtobebetter]

For a mining job.

 

[Rob Legat - SBPL]

NSW rules apply to NSW offences, not Queensland. Your Qld check was clear because it only took into account Qld records. A national police check obviously picked up your NSW conviction. There’s no conflict, the second search is larger in scope and more comprehensive.

 

[Tryingtobebetter]

NSW rules apply to NSW offences, not Queensland. Your Qld check was clear because it only took into account Qld records. A national police check obviously picked up your NSW conviction. There’s no conflict, the second search is larger in scope and more comprehensive.

Both checks were national police checks, not state checks.

 

[Rob Legat - SBPL]

My apologies, I missed that both were national checks. Regardless, the NSW provisions apply with respect to NSW offences. Where you live now has no bearing on whether the conviction is considered spent.

 

[Tryingtobebetter]

My apologies, I missed that both were national checks. Regardless, the NSW provisions apply with respect to NSW offences. Where you live now has no bearing on whether the conviction is considered spent.

I have read this below.

The Act governing the disclosure of historical offences is the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), (“the Act”). The Act applies to offences committed within other Australian jurisdictions as well, however only to the extent in determining whether they must be disclosed in Queensland.

I live and work in qld. Still this does not explain how I have two contradicting national police checks.

 

[Scruff]

A couple more questions:
1. Who applied for the second NPC? You or the employer?
2. If you know, what reason was given on the form for obtaining the NPC and did it include anything about the type of work?

 

[Tryingtobebetter]

A couple more questions:
1. Who applied for the second NPC? You or the employer?
2. If you know, what reason was given on the form for obtaining the NPC and did it include anything about the type of work?

The employer applied for the NPC it did not include any other reason such as working with children or vulnerable people. It was a standard NPC for pre employment.

 

[Scruff]

it did not include any other reason such as working with children or vulnerable people. It was a standard NPC for pre employment

Okay. The problem is that the type of work can dictate what information is disclosed by the AFP. If there is legislation (state or federal) that says that all convictions must be disclosed for NPC's relating to a particular occupation, then that is what will happen. These are known as "exclusions" under the Spent Convictions Scheme. But I doubt that "mining" on it's own would be one of those exclusions.

If an employer falsifies the job description in order to obtain an NPC that shows spent convictions instead of a standard NPC which doesn't, then they would be committing an offence. It's also possible that the AFP simply stuffed up. Basically, you need to find out if there's any legislation that requires disclosure of all convictions (including spent) for the job description that was indicated on the application and also whether or not that job description was accurate in the first place.

The following pages at the AFP web site explain NPC's and how they interact with the Spent Convictions Scheme:
AFP - Criminal records
AFP - Criminal records - National Police Checks
AFP - Criminal records - Spent Convictions Scheme
AFP - Criminal records - Frequently Asked Questions

If you believe that the employer unlawfully obtained information about your spent conviction, or that the AFP unlawfully disclosed that information (which includes by mistake), then you can lodge a complaint with the Office of the Australian Information Commissioner (OAIC). See this page for more details: OAIC - Criminal Records.