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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-10-29 Daily Xml
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SPENT CONVICTIONS (NO. 2) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 24 September 2009. Page 4096.)

Ms CHAPMAN (Bragg) (11:02): I rise to indicate that the opposition supports this bill. We compliment the mover, the member for Fisher, for bringing this issue to the parliament, not only with this bill; I think this is the fourth or fifth occasion on which the member for Fisher has attempted to—

The Hon. R.B. Such interjecting:

Ms CHAPMAN: I don't know whether that interjection about just being spent is an indication that the member for Fisher will not be contesting the next election. The opposition commends the member for Fisher for taking up this challenge and that, on the fourth or fifth attempt, the government has finally agreed to support it. The opposition commends him for his tenacity in continuing to advocate this cause.

Our understanding is that the government, in acquiescing to this bill, has done so subsequent to a meeting of attorneys-general and that there is agreement to have some similar legislation at a national level. That is allegedly the reason for the—

The Hon. M.J. Atkinson interjecting:

Ms CHAPMAN: You may well deal with that down the track—delay in not supporting the many previous bills presented by the member for member for Fisher. We are now 7½ years into the South Australian Labor Party's term of government, and it is beyond me why it could not have dealt with this at a council of attorneys-general before this. However, as the government has not even had time to deal with a national ICAC, I suppose that might be the reason the government is filling it up with things that are not as important. However, it has happened, and there has been public indication by the government that it will now support it, as we do. This bill will provide relief for those who, after 10 years, have been able to make it absolutely—

The Hon. M.J. Atkinson interjecting:

Mr PENGILLY: On a point of order, Mr Speaker: standing order 131.

The SPEAKER: The Attorney must not interject. The member for Bragg.

Ms CHAPMAN: If they have been able to demonstrate over the period of 10 years that they have been good, orderly citizens and have not breached the law, or at least not been caught doing so, they will be rewarded by having the record of their conviction removed. Regrettably, in this day and age, the registering or recording of a criminal offence, no matter how minor, sometimes has the direct effect of restricting their capacity to travel to a number of countries. A number of countries are on high alert now, and have very strict rules on admission and the issuing of visas. We now have a situation, here in the 21st century, where these very old convictions affect travel to a number of countries.

The second matter is this. For so many job applications now there is an obligation to disclose a criminal record—that is, obtain a certificate from SAPOL or disclose prior records. The opposition thinks that in those circumstances, and given the minor nature of these offences, people should receive a fair go. The opposition supports the bill.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (11:06): The government supports the bill introduced by the honourable member for Fisher. The bill is based on the model Spent Convictions Bill developed by the SCAG working group. Most jurisdictions in Australia have spent convictions legislation, with the exception of South Australia and Victoria. Internationally, spent conviction regimes have been established in many Western countries, including most members of the European Union, the United States, Canada and Japan.

In the 1970s the Australian Law Reform Commission and other state law reform commissions examined and supported the desirability of this legislation. The South Australian Law Reform Commission supported the seminal UK Howard League for Penal Reform report of 1972, which considered the issue with some changes. In 1984 the Attorney-General's Department prepared a discussion paper, 'Rehabilitation of Offenders: Old criminal convictions', upon which was founded the Rehabilitation of Offenders Bill 1991. The bill was opposed by the parliamentary Liberal Party. I repeat that: the Rehabilitation of Offenders Bill 1991 was opposed by the parliamentary Liberal Party, and it therefore had to lapse. The Royal Commission into Aboriginal Deaths in Custody has also raised the issue of—

Members interjecting:

The SPEAKER: Order!

Members interjecting:

The SPEAKER: Order, the member for MacKillop, and the member for Kavel!

Mr WILLIAMS: I rise on a point of order.

The Hon. M.J. ATKINSON: It is interesting that the member for Finniss takes a point of order about my interjecting, but does not take a point of order when the member for MacKillop shouts over me.

Members interjecting:

The SPEAKER: Order! The Attorney will take his seat. The member for MacKillop.

Mr WILLIAMS: Mr Speaker, I draw your attention to the fact that the Attorney-General cannot possibly be talking to the substance of the matter before the house when he reminds us of things that happened 25, 26 or 27 years ago.

The SPEAKER: There is no point of order.

The Hon. M.J. ATKINSON: There is, of course, no point of order; you are absolutely right, Mr Speaker.

Members interjecting:

The Hon. M.J. ATKINSON: It is remarkable that the Liberal Party's embarrassment about this legislation is so great that it has to change the subject to uranium mining.

Members interjecting:

The SPEAKER: Order!

The Hon. M.J. ATKINSON: Apparently the Liberal Party says that I am a fool for supporting this bill. I do not know why they would say that. The Royal Commission into Aboriginal Deaths in Custody has also raised the issue of expunging criminal convictions from the records of Aboriginal people. It recommended that criminal records of past convictions be expunged after a lapse of time. Juvenile convictions were recommended to be expunged after two years of non-conviction as an adult.

The purpose of spent convictions legislation is to reduce the stigma of a criminal conviction. The legislation will help a person with an old conviction from experiencing discrimination in obtaining lawful employment, acquiring certain licences, appointment as a company director, obtaining credit or insurance, participating in public life, and admittance to a particular profession or vocation. The policy basis of a spent convictions regime is one of rehabilitation. The legislation will assist by providing an incentive for convicted offenders to rehabilitate themselves and rewarding offenders once the rehabilitation has been achieved. The legislation would achieve those aims by:

allowing for nondisclosure of spent convictions;

limiting access to spent conviction information to some approved bodies where exemptions apply;

limiting the use that can be made of spent conviction information;

protecting against unauthorised access and use of a spent conviction;

reducing the legal disabilities that flow from a conviction; and

assisting in the preservation of a past offender's right to privacy.

I am surprised, after the gutter conduct in question time yesterday, that the Liberal Party appears to be supporting privacy today: it was not supporting it yesterday. In particular, the member for Goyder was making an intrusion into the Premier's private life.

The bill provides that a conviction will become spent once a specified time has elapsed during which the individual has not been convicted of any other criminal offences—five years for youths and 10 years the adults.

Mr Goldsworthy: You have been in the gutter for years, you lot.

The Hon. M.J. ATKINSON: Sorry? Serious offences or offenders sentenced to a lengthy period of incarceration—more than 24 months for youths and 12 months for adults—will be considered ineligible. Other exclusions will apply, which are mainly limited to criminal justice officials and select government agencies. The bill includes these features.

The conviction definition means a conviction for an offence and includes a formal finding of guilt by a court, formal findings of guilt, findings were offences have been proved, as well as offences that have been taken into account. I refer to clause 3.

Convictions that attract less than 24 months' imprisonment for youths and 12 months for adults are eligible offences capable of being automatically spent after five years for youths and 10 years for adults. That is clause 7. The exceptions are convictions of bodies corporate or convictions of a prescribed class, that is, sex and other prescribed offences. That is clause 5(2). Further offending within the prescribed period, excepting minor offences, would extend the qualifying period. I refer to clause 7(4).

The bill does not allow for the spending of sex convictions. The bill does not affect legal processes that may arise from a spent conviction including, for example, breaches of sentence conditions, disqualifications, fine enforcement proceedings, demerit points schemes and the exercise of any enforcement powers or other processes by a justice agency. I refer to clause 5(4).

The bill proposes mutual recognition to recognise jurisdictions that have corresponding laws. The bill protects a person from having to disclose a spent conviction (I refer to clause 10(b)), including any legal process associated with the offence or conviction (clause 3(4)). It also protects a person's appointment to a position where there has been no disclosure.

Wrongful disclosure offences (unless alternative remedies are legislated for) lie against persons who have access to records kept by or on behalf of public authorities or persons who engage in the business of providing information about convictions.

Defences to unlawful disclosure include (1) consent by a person regarding the release of information about his or her spent conviction; (2) good faith disclosures by persons, provided they have taken steps to avoid breaches of the legislation by implementing appropriate safeguards; and (3) continuing disclosure of a spent conviction in published materials that cannot reasonably be altered, for instance, online publications. New schedule 2 contains these exclusions:

investigation and prosecution of offences;

national security;

evidence before courts and tribunals, as well as proceedings associated with jury selection and service;

parole decisions;

occupations including judicial officers and associated officers, police, firefighters, special occupations, such as working with children or vulnerable people, and occupations or persons seeking licences for which there is a character test. The new expanded definition of work mirrors the Working with Children bill of the commonwealth to include various categories of paid and unpaid work; and

official records, archival and library information, authorised reports and publications, and non-identifying information.

Exclusion 6 (working with children), exclusion 7 (working with honourable people) and exclusion 8 (character test applications) that employ a fitness test. Miscellaneous provisions include an offence for improperly obtaining information about a spent conviction kept by a public authority. The prerogative of mercy is retained. Public authorities are prohibited from destroying records relating to spent convictions, quashed convictions and pardons.

The government in its support of the Spent Convictions Bill envisages that legislation will assist with the rehabilitation and reduction of reoffending by offenders by breaking down barriers to employment faced by many people who have a criminal conviction. The government is also pledged to the other worthy aim of ensuring that an offence should not go on forever for most people.

Mr HANNA (Mitchell) (11:15): I commend the member for Fisher for bringing into the parliament a bill to have certain convictions absolved. I note that the bill refers only to less serious offences, but the reality is that many people in the community engage in the follies of youth, and those issues should not be held against them forever, particularly in relation to less serious matters, so it is a fine reform. I support it.

The Hon. R.B. SUCH (Fisher) (11:16): First, I acknowledge the constructive support of the Attorney-General following the meeting of the Standing Committee of Attorneys-General and also the support of the opposition. With the passage of this measure, as I hope will be the case, this will be a historic day for people who have done something minor and silly and who want to get on with their lives. It gives them a fresh start. There are many thousands of people in South Australia who are looking forward to the passage of this legislation. I thank the member for Mitchell for his support as well, and I trust that members will now support the second reading of this bill.

Bill read a second time.

Third Reading

The Hon. R.B. SUCH (Fisher) (11:17): I move:

That this bill be now read a third time.

I do not believe there are any amendments on file. Once again, I commend the bill to the house.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (11:17): The government does not believe it has a monopoly on legislative or policy wisdom and, as with so many items in this chamber and the other chamber, we have been happy to support legislation proposed by Independents, minor parties and the opposition. Indeed, if you look at the record of the Rann government over almost eight years, we have agreed to more private members' legislation than has any previous government in my 20 years in the house. This would certainly not have happened under Trevor Griffin as attorney-general, and we will continue to support constructive suggestions by non-government members.

Bill read a third time and passed.

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