Spent Convictions (Part 8A Findings) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 28 September 2023.)

The Hon. S.L. GAME (16:37): I rise to put on the record my support for this bill, which proposes amendments to the Spent Convictions Act to include findings made under part 8A of the Criminal Law Consolidation Act 1935. The Spent Convictions Act allows eligible convictions to be spent after a certain period of crime-free behaviour.

A part 8A finding is made when a court determines an individual was mentally unfit during the commission of an offence or to stand trial. Findings of not guilty due to mental incompetence or unfitness to stand trial under part 8A are not treated as convictions in the Spent Convictions Act. However, as part of the information release process for criminal history checks, part 8A findings are included, along with convictions.

A part 8A finding is not considered a conviction, so it does not become automatically spent. In addition, an individual with such findings cannot apply to have them removed from their criminal record, unlike those with convictions for the same offence. This amendment bill remedies these anomalies by providing that part 8A findings will be treated like convictions for the limited purpose of the Spent Convictions Act. This ensures that those found not guilty due to mental conditions are not treated more harshly than convicted individuals.

The Hon. M. EL DANNAWI (16:38): I rise today to speak in support of the Spent Convictions (Part 8A Findings) Amendment Bill. We are all aware of the limiting effect that a conviction can have on someone as they move through their life. A criminal record, even for a minor crime, can have an impact on employability well into the future. In some cases this is warranted and in some cases it is not.

The law must be capable of recognising nuance and the potential for reform, without diminishing the protection of the public. It must try as much as possible to be balanced in respecting these interests. This is why measures such as the Spent Convictions Act are so important. The act establishes a scheme by which convictions can be spent. This means that a conviction will not be allowed to be disclosed or considered by employers or prospective employers should certain criteria be met.

The Attorney-General outlined in his second reading explanation a number of exclusions and exemptions to exclusions that apply, so I will not revisit them. I will, however, highlight that convictions for the most serious offences can never become spent. Convictions are only eligible to become spent if:

a sentence of imprisonment was not imposed or was imposed for a maximum of 12 months for an adult and 24 months for a minor;

the conviction relates to a designated sex-related offence. This refers only to sex offences between two consenting adults. Eligible convictions under this category can be related to offences between consenting people of the same sex where it would not have been an offence had they not been the same sex; or

the conviction relates to a prescribed public decency offence. This refers to an offence against public decency or morality by which homosexual behaviour was historically punished but did not include sex offences.

The scheme therefore not only recognises reform of the individual but reform of the law. Often the progress of society outpaces the progress of the law. It is therefore a matter of justice that convictions for crimes which we have since decriminalised should be able to become spent.

Another cornerstone of our justice system is procedural fairness. We do not allow those who are judged not fit to stand trial to be found guilty. Under part 8A of the Criminal Law Consolidation Act a person can be found not guilty by way of mental incompetence or unfitness to stand trial. However, findings under part 8A, as they relate to a charge, are still included in the information release process for criminal history checks. As a result of this, a person found not guilty of an offence by reason of mental incompetence can never apply to have that finding removed from their criminal record, despite a person who may have actually been convicted of the same offence being able to do so.

The bill addresses this by requiring a finding under part 8A to be treated as a conviction solely for the purposes of the Spent Convictions Act, which in turn will enable them to apply to have these findings spent for the purposes of the act. This act ensures that people who were charged with an offence but not convicted in light of their mental capacity or unfitness to stand trial, are not treated more harshly than people who have been convicted of an offence.

The spent convictions regime acknowledges reform. It recognises that an extended period of crime-free behaviour after an initial offence should be considered in decision-making. This bill rightly makes that same concession available to those who experienced or continue to experience a mental incapacity. I commend the bill to this place.

The Hon. J.M.A. LENSINK (16:42): This bill was introduced into the parliament on 28 September last year, and it amends the Spent Convictions Act to allow for a finding of not guilty by reason of mental incompetence or unfitness to stand trial to be spent in the same way as a conviction.

As the Attorney-General said in his second reading explanation when he introduced the bill, a finding of not guilty by reason of mental incompetence or unfitness to stand trial under part 8A of the Criminal Law Consolidation Act 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 other convictions.

A lot of us would understand and appreciate the purpose of the Spent Convictions Act to enable people who have been found guilty of lower level offences to have their conviction spent. I note that for the purposes of the act a finding of not guilty under part 8A is not a conviction, therefore a finding of not guilty for this reason is never spent, whereas a conviction for the same ineligible offence may be spent. In other words, under the current legislation somebody found not guilty because of mental incompetence has that retained, whereas someone who is found guilty is able to have that removed. That is quite a discrepancy in the law.

It is quite a narrowly cast piece of legislation, and I note that, other than minor clauses in this bill, the bill does not make any broader changes to the spent convictions legislation. For those reasons, to correct what is essentially a discrepancy between the treatment of convictions under various parts of our legislation, the Liberal Party supports the bill.

The Hon. R.A. SIMMS (16:45): I rise to speak in favour of the Spent Convictions (Part 8A Findings) Amendment Bill 2023. Currently, I understand people who are found not guilty by reason of mental incompetence are not able to access provisions to consider their conviction spent and therefore not disclosed on their criminal history checks. This creates an inequality for people in those circumstances. When someone is applying for a job, they are often asked for their criminal history.

The Greens believe it is important to reduce the stigma and inequality for people with intellectual disabilities. When people enter the criminal justice system it is important that we protect their human rights. The United Nations Universal Declaration of Human Rights, article 7, speaks to this: 'All are equal before the law and are entitled without any discrimination to equal protection of the law.'

It is my understanding that there are no clear rules around what must be included in a criminal history check provided by the police; however, there are rules around what is excluded. This bill would ensure that people who have a finding of mental incompetence made in relation to them, or unfitness, would be able to have that excluded from their criminal history, which would be a very positive step forward in terms of ensuring that those people can be full and active members of our community.

People with different intellectual needs can already experience discrimination in many facets of their life. Anywhere we can reduce those layers of disadvantage, we should act. We need to remove barriers to meaningful employment and quality of life. In applying for jobs, it is ultimately unjust for people with a finding of mental incompetence to have it revealed when they are lodging an application. The Greens consider this bill to be a sensible measure that would reduce inequality and discrimination and we congratulate the government for acting on it.

The Hon. E.S. BOURKE (16:47): Justice is only just when it is applied equally. Every person in our society deserves access to justice on the same terms. One of the key tasks of any government—and certainly a passion of this Labor government—is to identify and pursue reforms that broaden community access to justice on equal terms.

This bill addresses one area of law where reform is required in order to ensure that justice is applied equally. The Spent Convictions Act establishes a scheme that allows for eligible convictions to be spent after a period of crime-free behaviour. This means it sets out the law on when a conviction is no longer disclosed on your criminal record. Once a conviction becomes spent, there is no requirement that it be disclosed to employers or prospective employers.

It is important to make clear that not all convictions are eligible to become spent. Convictions for the most serious offences cannot ever become spent. That is appropriate and is in line with community expectations. However, it is also in line with both community expectations and legislative practices that a range of convictions are eligible to become spent after a range of conditions are met, hence the reason for the act to exist. When the act was initially developed and implemented, it was welcomed by many.

Importantly, I note there are a series of exclusions and exemptions to exclusions that do apply; for example, with regard to seeking certain employment. The Attorney laid out a fair bit of detail about this, as has been highlighted by other honourable members, so I will not refer to those contributions. In this bill it seeks to redress an equal application of justice.

Currently, where a person is found not guilty by reason of mental incompetence or unfitness to stand trial under part 8A of the Criminal Law Consolidation Act this is not treated as a conviction for the purposes of the Spent Convictions Act. That is despite part 8A findings being included in the information release process for criminal history checks. As a result, a person who is found not guilty of an offence by reason of mental incompetence cannot at any time apply to have that finding removed from their criminal record, whereas a person who has been convicted of the same offence may be able to do so. This is a double standard.

The intent of this bill is to make sure that South Australians who were charged with an offence but who, in light of their mental incompetence or unfitness to stand trial, were not convicted, are not treated more severely under our laws than those who have been convicted of another offence. The spent convictions regime acknowledges that people are capable of changing, that behaviours and patterns of behaviour are capable of being reformed, and that an extended crime-free period following an initial qualifying offence should mean that they are afforded the opportunity of what amounts to a fresh start.

This bill seeks to apply that same recognition to persons who, at the time of an offence, were deemed unfit to stand trial or were experiencing mental incapacity that led to a part 8A finding. These changes are fair and reasonable and they address what is not right or just in our current laws. I acknowledge the Attorney-General for bringing this legislation and I commend the bill.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:51): I thank all speakers on this bill and particularly thank them for the indication of support in rectifying what is an anomaly. I thank those who have worked hard to bring this bill before the chamber today to correct this.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. I.K. HUNTER: Will the Attorney outline to the chamber how spent convictions are applied? For example, after the passage of this legislation, anyone who was found to be mentally incompetent and therefore not found guilty of an offence—would it be automatically applied if someone requested their criminal record, or would that person need to apply to have that record spent?

The Hon. K.J. MAHER: I thank the honourable member for his question. It was a question that was raised during the committee stage of the bill that we previously dealt with. The spent convictions regime has a number of different ways for convictions to become spent. There are some, depending on the nature of the conviction, that become spent with the passage of time. There are other offences—again, depending on the nature of the offence—that require an application to be made by someone who has been convicted of that offence and a court to grant those.

There are some offences, of course, that you cannot apply to be spent and there are certain procedures within the Spent Convictions Act that provide exceptions to some of those provisions. What this bill seeks to do is put someone who has been found not guilty by reason of mental incompetence (a part 8A finding) on the same footing as someone who has actually had a finding of guilty.

It certainly was an anomaly in our legislation that someone who was actually found guilty could either have convictions automatically spent, depending on the nature of them, or could apply to have convictions spent, but someone who was found not guilty by reason of mental incompetence was on a different footing and could not actually apply to have those essentially taken off their permanent record and have the convictions counted as spent.

The Hon. I.K. HUNTER: I thank the Attorney for the explanation. My interest is in fact in part 8A, a situation where a person was found not guilty by reason of mental incompetence. Would that person, or any of those persons who fit into that category, have to apply for that record to be spent? For those persons in particular, found not guilty because of mental incompetence, would it not be better for that to be automatically spent, so they do not have to go through the process of applying for it?

The Hon. K.J. MAHER: There will be some that will be automatically spent, but there will be some—

The Hon. I.K. Hunter: Because of time?

The Hon. K.J. MAHER: Because of the passage of time. Anyone who has a conviction that is automatically spent under the scheme for spent convictions as it currently stands, it will apply in the same way to someone who has an 8A finding of not guilty by reason of mental incompetence. If it is an offence in a category that requires an application at the moment for someone who is found guilty, it will also require an application if you have an 8A finding. It puts an 8A finding on the same footing as someone who has had a conviction recorded.

Clause passed.

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

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:57): I move:

That this bill be now read a third time.

Bill read a third time and passed.

At 16:58 the council adjourned until Wednesday 6 March 2024 at 14:15.