SPENT CONVICTIONS (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 29 November 2012.)

The Hon. S.G. WADE (15:42): I rise on behalf of the Liberal opposition to indicate our support for the Spent Convictions (Miscellaneous) Amendment Bill 2012. The Attorney-General, the Hon. John Rau, introduced the Spent Convictions (Miscellaneous) Amendment Bill 2012 in the House of Assembly on 13 November to deal with certain unintended consequences arising from the Spent Convictions Act 2009.

The act allows for certain criminal offences in certain circumstances to automatically become spent after the qualification period of 10 years, as long as the individual involved has not been convicted of further offences. In most circumstances a spent conviction will not appear in a national police check and need not be disclosed if a person is asked about past convictions.

The Spent Convictions Act does not allow the following two classes of offence to be spent: first, serious offences where an adult was sentenced to 12 or more months' gaol or a minor was sentenced to 24 or more months' detention and, secondly, sex offences. Further, an offence that is otherwise spent must nonetheless be disclosed in situations specified in the act; for example, where the person is applying to care for or work with children. Minor historical sex offences, commonly known as 'young love offences', cannot be spent under the act. This has caused considerable angst in the community. It has inhibited many good people from volunteering or finding gainful employment.

The government knew that its decision not to include a mechanism for these 'young love offences' to become spent would cause grief in the community. In his second reading contribution in the Legislative Council in relation to the 2009 act, the Hon. R.D. Lawson QC RFD discussed the then attorney-general's changing stance on the issue of spent convictions. In doing so, he highlighted the community's widespread concern that some people's historical convictions for 'young love' offences would not be spent under the bill, making it:

Difficult for people to obtain employment in, for example, the aged care industry, where there are stringent commonwealth requirements that prohibit an aged care operator from employing people who have been found guilty in the past of sexual offences.

The bill did 'not provide any relief for people caught in that situation' and that in some other jurisdictions:

A person in that situation can obtain an order from the court, for example, expunging the record so that that offence becomes a spent conviction.

A review-based approach to expunging minor historical convictions which would not automatically become spent under the act, such as that in the current act, was discussed in the debate on the 2009 bill. It was already operating interstate at that time. The government decided not to take up that option, deciding instead that there would be no mechanism for individuals to seek relief. The government knew that their approach would create a stigma for people convicted of historical 'young love' offences but it did not act.

The government had the opportunity to spend those additional offences by court order. This would have struck, in our view, a better balance between protecting the community and not unfairly burdening the individual, as the court would be empowered to decide whether expunging the conviction was appropriate after considering the nature of the offending and the rehabilitation of the offender.

The Attorney-General's office received numerous letters from members of the public who have been prevented from volunteering or from employment because of very old and minor convictions appearing on their police check. The government released a discussion paper in late 2011 covering possible amendments to the Spent Convictions Act 2009. The discussion paper ignored the previous proposal for those convictions to be spent by court order and, instead, suggested that very old and minor convictions would become automatically spent, including for excluded purposes after 20 years.

Only after feedback on the discussion paper clearly demonstrated the flaws with the government's proposal did the Attorney-General introduce the court-ordered expunging of convictions. The Spent Convictions (Miscellaneous) Amendment Bill 2012, in that sense, represents a backflip by the Attorney-General on the issue. The bill proposes to amend the Spent Convictions Act 2009 to permit an individual, after 10 years of good behaviour, to apply to a qualified magistrate for an eligible sex offence to be spent. An eligible sex offence is defined as one for which a sentence of imprisonment is not imposed.

The bill further provides that individuals apply to a qualified magistrate for an order that any spent convictions (including a sex offence) may be disregarded for one or more of the following purposes:

care of, or working with, children;

care of, or working with, vulnerable people; and

activities associated with a character test.

The Attorney-General in the House of Assembly moved an amendment in the committee stage of the debate which is intended to prevent an individual from applying for an historic sex offence to be expunged if that person was detained (even if not imprisoned) for that offence, because they were deemed to be incapable of controlling or unwilling to control their sexual instincts. The Liberal opposition supported this amendment in the House of Assembly and continues to do so.

Within mutual recognition principles, section 6 of the act allows convictions for offences of other jurisdictions to be spent. In contrast, section 8A(3) and section 13A(4) of the bill prevent applications being made to the qualified magistrate for minor convictions incurred in other jurisdictions to be declared spent. I cannot see the policy grounds for such a distinction, other than to prevent a flood of interstate applications to the qualified magistrate. The opposition is therefore in discussion with the government on the possibilities of an amendment which would allow applications to be made with respect to interstate convictions on behalf of residents of South Australia. This amendment, in our view, would be a particular assistance to South Australians living in border regions.

The Law Society made the comment in relation to this bill that in the interests of good drafting section 8 of the act, a key operative clause, should be amended so it is expressly subject to the proposed section 8A of the bill. Whilst the Law Society suggests that the bill, as currently drafted, may achieve its objectives, the clause should be redrafted for the avoidance of doubt. I would ask the minister in her summing up or at the committee stage to provide the government’s view on the Law Society’s advice and whether the government intends to make an amendment on the basis of it.

The bill proposes that if an application to spend a conviction is refused, the unsuccessful applicant may not reapply for that conviction to be spent within two years of the refusal. The Law Society criticised the prohibition for being unduly lengthy, overly harsh and oppressive, especially since the offence, the subject of the application, is at the lower end of the scale of seriousness in that it attracted a non-custodial penalty.

The Law Society argues that, whilst individuals may seek judicial review of a qualified magistrate’s decision, given the costs and prospects of successfully overturning a decision, it is likely to be inappropriate in the circumstances. Further, the two year prohibition is thought to be likely to encourage more people to seek a review than would otherwise be the case.

I am in discussions with the government as to the appropriateness of an amendment to the bill retaining the two year prohibition period, but allowing an application to be made by leave to a qualified magistrate in extenuating circumstances. The goal is to allow flexibility in the interests of justice and yet prevent unnecessary reapplications.

I urge the council to give due consideration to our amendments if, following discussions with the government, they are filed. I understand the Hon. John Darley has also filed amendments this afternoon. The opposition looks forward to giving favourable consideration to any suggestion to improve the bill so that South Australians can get not only a bill that provides clarity in people’s past criminal activity but also gives people the opportunity to make a fresh start and, having dealt with their offending behaviour, get on with living law-abiding lives.

The Hon. CARMEL ZOLLO (15:51): I rise in support of this proposed legislation. The Spent Convictions Act 2009 came into force on the 13 February 2011. The act was a response to a private member's bill from the member for Fisher from the other place. The aims of the act were admirable. The act sought to introduce a formal framework around when and in what circumstances a conviction could be spent. It is important that minor convictions from years ago do not prevent a person from gaining employment. At the same time, it is important that employers are notified of a person’s criminal history before making the decision to employ that person.

What the act attempted to do was to strike that balance, but it has had unintended consequences. I am sure many of the honourable members have received correspondence from constituents about ancient convictions that have suddenly started appearing on his or her police certificate. The constituent will explain that the conviction had not previously appeared on his or her certificate and will justifiably ask why it appears now when it did not before.

The answer is that the act requires South Australian police to include all old convictions on police certificates, whereas before South Australian police were able to exercise some discretion in this regard. Convictions which were previously not included by virtue of this discretion are now required to be included on the certificate.

The government does not intend to return to a discretion framework resting with the South Australian police. Instead this bill improves the existing framework around spent convictions to better strike the balance between old convictions and the right of employers and others to know another’s criminal history. The most important aspect of the bill, in my view, is the fact that a ‘no conviction recorded’ order by the court will now have the intended effect. It may seem ridiculous to members, but under the existing system, when a court makes the decision to record no conviction, the person’s police certificate will still record that conviction, albeit with the words ‘no conviction recorded’. Of course, this defeats the purpose of the court’s order, namely to ensure that the person’s ability to gain employment is not affected by what the court considers to be a very minor matter.

I am pleased that this bill will resolve this issue, that the bill appears to have broad party support and I look forward to the successful passage of this bill through this chamber and no doubt many of our constituents will be very happy with the result.

The Hon. J.A. DARLEY (15:55): I rise very briefly to speak on the Spent Convictions (Miscellaneous) Amendment Bill, and in so doing also commend the member for Fisher in another place for following up this matter with the government. The bill, as we know, provides for individuals to apply to a qualified magistrate to have an eligible sex offence spent after a period of good behaviour. These provisions will only apply where the offender was not imprisoned, whether suspended or not.

It may be worthwhile at this point to foreshadow that I intend to move one amendment to this bill in relation to juvenile offenders and, more particularly, instances which, loosely, can be referred to as young love or young lust, as the case may be. If a young person aged, say, 17 years is charged with a sexual offence and chooses to enter a plea of guilty, they may very well be handed a suspended sentence. This is something which will remain with that person for the rest of their life. It will impact everything they do in the future.

In some cases of young love this seems a little heavy handed. As such I will be proposing that, if a sentence of imprisonment is imposed but that sentence is suspended in whole and the individual has not reoffended, then they should be able to apply to a qualified magistrate to have that conviction spent. Again—and to be clear—this is only intended to apply to minor sex offences. If the offending is of a serious nature, the magistrate will have the discretion to reject the application. It will not be an automatic process. The amendment will only apply to juveniles and will only apply when any sentence is suspended. It is very limited in its application. With that, I support the second reading of this bill.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (15:57): I understand that there are no further second reading contributions to this most important bill. By way of summary, I thank those members who have contributed to the debate. As has been pointed out, the bill is a result of public consultation and aims to address community concern that the Spent Convictions Act treats too harshly those individuals who have had very old and minor convictions but who have since attained a long period of good behaviour.

This bill strikes the balance between protecting our community, particularly children and the vulnerable, and allowing persons to seek to have their convictions spent and disregarded, but only by application to a qualified magistrate. The bill also proposes amendments to the act so that, where a court has decided that no conviction should be recorded, then no record of that conviction will appear on a national police certificate and none of the excluded purposes in section 1 apply in relation to quashed or pardoned offences, so the individual is in the same position as if the conviction had never occurred, that is, they are considered spent immediately and for all purposes.

Young people may make a mistake before maturing (and some take longer to mature than others) and going on to lead exemplary lives, but many years later when seeking work or volunteering in aged care or in their grandchild's school, for example, these individuals are precluded quite unfairly from doing so because of a mistake made in their youth. This bill assists these people by maintaining appropriate safeguards to protect the most vulnerable in our community. I thank members for their support and commend the bill to the house.

Bill read a second time.