Thursday, 16 June 2016

When can you leave the past behind you?

In recent weeks, attention has been drawn to a federal election candidate in Western Australia who did not declare two spent convictions to the political party that had endorsed him as its election candidate.  The candidate has now been disendorsed by the political party and lost the opportunity to run for a seat in the Federal Parliament.
Aside from heightened scrutiny of candidates at election time, this situation raises a simple question, that does not always have a clear answer: what is a 'spent' conviction?  And in what circumstances does a person need to disclose such information to a government agency, employer or a non-government organisation?

The short answer is (in part) it will generally depend on the nature of the offence, when and where the offence was committed, and to what organisation or who you are providing the information.

What may surprise is that there is no spent conviction legislation in Victoria or formal rules that govern the disclosure of criminal history information.  However, Part VIIC of the Crimes Act 1914 (Cth) sets out the Commonwealth Spent Conviction Scheme.  All other jurisdictions in Australia have spent conviction schemes.

Victoria

A person's history of any Victorian criminal convictions are held by and accessed through Victoria Police.

While Victoria has recently passed legislation which provides for the expungement of certain historical homosexual offences, it does not have a general statutory regime dealing with spent convictions.

However, Victoria Police has an Information Release Policy that it applies to requests for an individual's criminal conviction history.

The Information Release Policy states that, save for certain exceptions, no details of a prior offence will be disclosed if 10 years has passed since an adult was last found guilty of an offence.  A five year waiting period applies for persons under 18 years of age.  Therefore, details of a person's prior convictions will generally not be disclosed by Victoria Police in a criminal history check once the relevant waiting period has lapsed, and in the absence of further offending.  However, an individual's criminal history remains in the records of Victoria Police.  As such, despite the Information Release Policy, Victoria Police may exercise its discretion and disclose criminal history information depending on the purpose for which the information is sought and to whom it will be disclosed (e.g. where the information is required for employment with children, the elderly or disabled persons).

Commonwealth

While Victoria does not have spent conviction legislation, Victoria Police’s Information Release Policy operates, in practice, in a similar way to the Commonwealth’s Spent Conviction Scheme in Part VIIC of the Crimes Act 1914.

Section 85ZM of the Crimes Act 1914 provides that a person's conviction for an offence will be spent if:
(a)  the person has been granted a pardon for a reason other than the person was wrongly convicted of the offence; or
(b)  the person was not sentenced to imprisonment for the offence, or was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended .

The scope of a person's rights and obligations under the scheme varies depending on:

  • whether the conviction is for a Commonwealth, state, territory or foreign offence
  • who or what type of authority or organisation knows or is being told about a spent conviction (ie a government authority or a non-government organisation)
  • where the person being told is located.
Generally, the Commonwealth scheme permits a person to not disclose a spent conviction:

  • to any person located in a state or territory of Australia a spent conviction for a Commonwealth offence;
  • to a Commonwealth authority a spent conviction for a state, territory offence or foreign offence.

The scheme also operates to allow a person to say under oath that they have not been charged with or convicted of an offence.

However, some categories and positions of employment are excluded from the Commonwealth scheme and require that a person must declare all convictions when applying for certain positions (eg a law enforcement agency has a right to information about a person's spent convictions for the purpose of making decisions in relation to prospective employees and contractors).

Other jurisdictions

In order to determine what a person’s rights are in relation to non-disclosure of a state or territory offence in Australian jurisdictions other than Victoria, the relevant spent conviction legislation will need to be consulted.

Take home points for individuals and government authorities

When determining whether they must disclose information about a prior conviction, individuals need to carefully consider where the offence was committed, the nature of the offence, how serious it was and what period of time has passed since it was committed.  While there can be a tension between a person disclosing their prior conviction history and their ability to put their past offending behind them and privacy, in some cases, disclosure of prior convictions will always be required, or at least expected, given the reason or purpose for which they are disclosing the information.  For individuals, ensure you read the fine print on what you are required or expected to disclose about your history of prior convictions and/or disciplinary offences to a government authority or non-government organisation.

Government authorities should ensure their application and consent forms clearly advise members of the public why and when they are required to disclose their prior conviction history, including what if any spent conviction scheme applies (including relevant exceptions) and how the information will be used.  Government authorities should also ensure they comply with privacy and data protection legislation when collecting information about a person's prior convictions.  This includes having privacy policies on how such information may be collected, used and disclosed.

Further information

- Victoria Police, National Police Certificates-Information Release Policy (2016)
- Part VIIC, Division 6 of the Crimes Act 1914 and Regulations 7A and 8 and Schedule 3 of the Crimes Regulations 1990
Sentencing Amendment (Historical Homosexual Convictions Expungement) Act 2014

Joanne Kummrow
Special Counsel
03 8684 0462

Michael Williams
Solicitor
03 8684 0471

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