Spent Convictions (Part 8A Findings) Amendment Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Defence and Space Industries, Minister for Climate, Environment and Water, Minister for Workforce and Population Strategy) (20:22): 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, one 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 the magistrate must consider when deciding whether to order these convictions to become spent.

However, as explained at the outset, a part 8A finding is not a conviction. This means a part 8A finding does not become automatically spent in the same way a conviction for the same offence does. It also means that, although the part 8A finding will appear on a person's criminal history, that person is not able to apply under the Spent Convictions Act to have the finding declared to be spent under sections 8A, 8B or 8C of the Spent Convictions Act, nor can they apply for an order under section 13A of the Spent Convictions Act.

The bill remedies these anomalies by providing that a part 8A finding will be treated as if it were a conviction for the limited purpose of the Spent Convictions Act. This means that people who have not been convicted of an offence due to mental incompetence or unfitness to stand trial are not treated more harshly than people who have been convicted of an offence. I commend the bill to the house and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Spent Convictions Act 2009

3—Amendment of section 3—Preliminary

This clause makes sure that terminology used in the Act works in relation to Part 8A findings. References in the Act to a sentence of imprisonment will extend to limiting terms fixed under section 269O(2) of the Criminal Law Consolidation Act 1935 (or an equivalent under the law of another jurisdiction) and a finding by a court that the objective elements of an offence are established in proceedings under Part 8A of the Criminal Law Consolidation Act 1935 (or an equivalent under the law of any other jurisdiction) will be treated as a conviction under the Act.

4—Amendment of section 4—Meaning of spent conviction

This clause sets out when Part 8A findings that are treated as convictions for the purposes of the Act will be taken to be immediately spent.

Schedule 1—Transitional provision

1—Findings made before commencement

The amendments will apply in relation to a finding by a court whether the finding was made before or after the commencement of the measure.

Mr TEAGUE (Heysen) (20:24): I rise to indicate the opposition's support for the bill and indicate I am the lead speaker. This is a bill that, as is the practice in so many circumstances in this Fifty-Fifth Parliament, was introduced by the Attorney in another place on 28 September 2023. We are shortly to celebrate the anniversary of that event, and it has found its way here to this place, and the Deputy Premier has put on the record the government's observations in the second reading, provided also in the other place.

I will not stay too long except to highlight the reason in principle why this is good legislation and ameliorative legislation in the interests of those who are found not guilty under part 8A. They should not be treated more harshly than those who are convicted and have the opportunity for their conviction to be spent. It is for the reason of the special status of a part 8A finding that the finding of not guilty in those circumstances is never spent, whereas a conviction for the same, eligible offence may be spent. The spent convictions process is otherwise unaltered.

I just note again with appreciation the Law Society's contribution, in supporting the bill, querying why an 8A finding is inevitably the subject of the 10-year conviction period before automatically being spent and whether the bill could go further to provide for the court to provide a further equality in terms of its capacity to deal with a conviction in the ordinary course sooner than that or regarded as automatically spent.

The contribution of the Law Society, again for the record, is the subject of then president James Marsh's letter to the Attorney dated 15 March 2023, and it makes that observation succinctly. That is all on the record. If in closing the debate the Deputy Premier has anything further to add then that might help do away with the possibility of raising that as a matter in committee.

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) (20:29): I think we will discuss that through committee, because I would rather have an adviser with me. Therefore, I commend the bill for a second reading.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr TEAGUE: I take up the question that I raised in the second reading debate by reference to the Law Society's query, the subject of its 15 March 2023 letter to the Attorney. Just for completeness, I note that the president writes as follows:

The Bill was considered (and supported) by the Society's Human Rights and Criminal Law Committees. In their consideration of the Bill, Committee Members queried the condition of a 10 year period before a Part 8A finding is automatically spent, noting there is opportunity for consideration being given to a Part 8A finding being immediately spent, as is the case where a person is found guilty of an offence by a court (or a finding by a court that an offence has been proved) but no conviction is recorded against the person, as per sections 3(5) and 4(1a) of the Act. It was observed that a similar approach is currently taken in Victoria.

So that is the nature of the query.

The Hon. S.E. CLOSE: A word of caution, which I am sure the member would be aware of in comparing to Victoria, is that Victoria has a three-tier system, and so it is not a simple borrowing from one state to the other. In response to the concerns that were raised in the letter that you read out, clause 4 was added to the bill, which provides that if someone is convicted in section 8A and they are released unconditionally, then that is immediately treated as a spent conviction. The other part of what has been raised is simply a decision that the government has made in forming this piece of legislation.

Clause passed.

Remaining clauses (2 to 4), schedule and title passed.

Bill reported without amendment.

Third 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) (20:35): I move:

That this bill be now read a third time.

I thank, sincerely, the advisers who have not only helped guide us through but have done that reasonably late in the evening, and I appreciate their dedication.

Bill read a third time and passed.