Spent Convictions (Part 8A Findings) Amendment Bill

Second Reading

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Climate, Environment and Water, Minister for Workforce and Population Strategy) (17:52): I move:

That the time allotted for all stages of the bill be 60 minutes.

Motion carried.

The Hon. S.E. CLOSE: I move:

That this bill be now read a second time.

This bill amends the Spent Convictions Act 2009 to bring findings made under part 8A of the Criminal Law Consolidation Act 1935 within the spent convictions regime. Part 8A of CLCA sets out the process and outcomes that apply when a person is facing criminal charges but there is a question about whether they were mentally competent to commit the offence or mentally unfit to stand trial. The Spent Convictions Act sets out a regime providing for eligible convictions to be spent after a designated period of crime-free behaviour. In general, a spent conviction is not required or permitted to be disclosed to, and may not be considered by, employers or prospective employers.

A finding of not guilty by reason of mental incompetence or unfitness to stand trial under part 8A of the CLCA is not treated as a conviction for the purposes of the Spent Convictions Act. However, as part of the information release process for criminal history checks, part 8A findings are included along with convictions. This creates a situation where a person who is found not guilty of an offence by reason of mental incompetence or due to mental unfitness can never apply to have that finding removed from their criminal record in the same way as a person who was instead convicted of the same offence. This bill addresses this by requiring a part 8A finding to be treated as a conviction for the limited purpose of the Spent Convictions Act only.

It is worth explaining in general terms how part 8A of both the CLCA and the Spent Convictions Act operate at present to put the changes contained in the bill in context. In criminal matters, a court may make a finding of not guilty because of mental incompetence or mental unfitness to stand trial in accordance with part 8A of the CLCA. A part 8A finding will be made when the court is satisfied that the objective elements of the offence are proven but the defendant is either found to have been mentally incompetent to commit the offence or mentally unfit to stand trial.

A person subject to a part 8A finding will be declared to be liable to supervision and may either be released unconditionally or be subject to supervision within the community or via detention. When a person is subject to a supervision, the court must set a limiting term equivalent to the length of imprisonment that would have been imposed if the person had been convicted of the offence. In this way, part 8A of the CLCA ensures that people who are so mentally unwell that they should not be held criminally responsible for their offending behaviour are not convicted, while ensuring community protection is achieved where required.

Turning now to the Spent Convictions Act, convictions for the most serious offences cannot ever become spent. Convictions are only eligible to become spent if:

a sentence of imprisonment was either not imposed at all or was 12 months or less, or 24 months' detention in the case of a juvenile;

they relate to a designated sex-related offence—that is, offences involving consensual sexual activity; or

they relate to a prescribed public decency offence—offences against public decency by which homosexual behaviour was historically punished.

A conviction for an offence other than a sex offence will generally become spent automatically following a crime-free period: 10 years post-conviction for adults or five years post-conviction for eligible juvenile offences. Once a convention becomes spent, it is not required or permitted to be disclosed to, and may not be considered by, employers or prospective employers. However, the spent convictions regime is complex, containing rules about the treatment of convictions, exclusions to the rules, and exemptions to the exclusions.

Under section 1 of the Spent Convictions Act, several agencies and activities are exempted from the provisions that remove the need to disclose a spent conviction and create offences about disclosure of them. This means that spent convictions information is still required to be provided where the exemptions apply. For example, justice agencies, intelligence agencies, the Parole Board, prescribed screening units, assessments relating to the care of children, and assessments relating to employment as a police officer are some of the agencies and activities that come under these exemptions.

Under clauses 7 and 8 of schedule 1 of the Spent Convictions Act, spent convictions must still be disclosed and considered as part of assessing a person's fitness to care for vulnerable people and as part of a statutory assessment of fitness and propriety relating to an occupation, profession, position or activity, often referred to as a 'character test'.

However, under section 13A of the Spent Convictions Act the person may apply to a magistrate for an order that the exclusions in clauses 7 and 8 do not apply in relation to an offence. The magistrate is required to consider various factors before making such an order, including the circumstances and seriousness of the offending, whether the offence involved a vulnerable person, and whether the removal of the exclusion might present a risk to children, vulnerable people or the public, amongst other factors.

The effect of an exemption order is that the applicant is permitted to revert to not having to disclose those convictions, including when assessing a person's fitness to care for vulnerable people. However, there is also a legislative exclusion to an exemption order permitting a prescribed screening unit to continue to access and rely on those convictions.

Similarly, a convicted person can apply to a magistrate under sections 8A, 8B and 8C of the Spent Convictions Act for a conviction for an eligible sex offence; that is to say where no sentence of imprisonment was imposed, a designated sex offence or a prescribed public decency offence to be spent. These categories of offences do not become automatically spent after the relevant period.

Again, the Spent Convictions Act sets out several factors that the magistrate must consider when deciding whether to order these convictions become spent. I seek leave to continue my remarks.

Leave granted; debate adjourned.

Sitting suspended from 17:59 to 19:30.