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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-09-25 Daily Xml
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SPENT CONVICTIONS (DECRIMINALISED OFFENCES) AMENDMENT BILL

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (15:41): Obtained leave and introduced a bill for an act to amend the Spent Convictions Act 2009. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (15:41): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

This Bill amends the Spent Convictions Act 2009 (the SC Act) to ensure that historical convictions for offences constituted by homosexual acts (that are no longer criminal offences) can be spent.

In late 2012 the President of the Senate, the Hon. John Hogg, wrote to the Premier informing him of a resolution agreed to by the Senate on 22 November 2012. The resolution was as follows:

That the Senate—

(a) notes:

(i) homosexual acts were decriminalised in Victoria in 1981 but that convictions prior to that date can still appear on a Victorian person's police record; and

(ii) that the United Kingdom (UK) recently enacted legislation to expunge historic convictions for homosexual acts which were imposed prior to the decriminalisation of homosexuality in the UK; and

(b) calls on all Australian states and territories to enact legislation that expressly purges convictions imposed on people prior to the decriminalisation of homosexual conduct.

In response, the Bill has been drafted to make amendments to the SC Act to facilitate the spending of such convictions. In its resolution, the Senate referred to the United Kingdom legislation to expunge historic convictions for homosexual acts.

The legislation in the United Kingdom does not provide for any automatic spending of these historical convictions, but rather, under the provisions of the Protection of Freedom Act 2012, the Home Secretary may disregard certain convictions for decriminalised consensual sex offences. The provisions commenced on 1 October 2012.

Under these provisions in the United Kingdom, individuals can apply to the Home Secretary for a formal disregard of the convictions. The application form requires the applicant to provide personal details as at the date of the conviction, details of the convictions and a statement confirming that the convictions related to an offence committed by two or more consenting parties, who were, at the time of the offence, aged 16 years or over.

Applicants are asked to provide any documentation or material to support their application.

The Bill makes amendments to the SC Act taking a similar approach.

Under the SC Act certain criminal offences automatically become spent (for most purposes) after a qualification period of 10 years provided that the individual has not been convicted of any further offences other than a minor offence in which there was no penalty or the only penalty was a fine not exceeding $500.

Under the SC Act there are some offences that can never be spent.

Serious offences (where the person was sentenced to more than 12 months gaol, or in the case of a youth, 24 months detention) are never spent.

In addition, a sex offence can only be spent by order of a qualified Magistrate. However, only an 'eligible sex offence' can be spent. A sex offence is considered to be an 'eligible sex offence' if the penalty upon conviction did not include imprisonment (whether suspended or not).

A spent conviction does not appear on a police check and need not be disclosed if the person is asked about past convictions, for instance in a job interview, with some exceptions.

Under the SC Act, spent convictions can be disclosed if disclosure is for one of a number of excluded purposes. These exclusions are listed in Schedule 1 to the SC Act.

Of relevance to the Bill, Schedule 1 provides that the provisions contained in Part 3 Division 1 of the SC Act (which state that spent convictions do not have to be disclosed and are protected) does not apply:

in relation to care of children being:

any administrative, judicial or other inquiry into, or assessment of, the fitness of a person to have the guardianship or custody of a child, or access to a child; or

any assessment of the fitness of a person undertaking, or seeking to undertake, (including without any fee or reward) work or any other activity that directly involves;

the care, control, supervision or instruction of children; or

otherwise working in close proximity with children on a regular basis; or

any assessment of the fitness of a person undertaking, or seeking to undertake, (including without any fee or reward) work or any other activity that directly involves acting as an advocate for children in legal proceedings; or

without limiting a preceding paragraph, a disclosure required or permitted by or under another law (including a law of another jurisdiction (including a law of an overseas jurisdiction)) in relation to a person who works, or who is seeking to work, with children; or

any—

disciplinary or fitness inquiry or investigation; or

enforcement action or proceedings (including for the suspension or cancellation of a registration, licence, accreditation or other authorisation or authority), associated with a person within a preceding paragraph (Part 6 of Schedule 1);

in relation to care of vulnerable people being:

any administrative, judicial or other inquiry into, or assessment of, the fitness of a person to have the guardianship of an aged person or persons with a disability (including an intellectual disability), illness or impairment; or

any assessment of the fitness of a person undertaking, or seeking to undertake, (including without any fee or reward) work or any other activity that directly involves;

the care of aged persons or persons with a disability (including an intellectual disability), illness or impairment in legal proceedings; or

otherwise working in close proximity with aged persons or persons with a disability (including an intellectual disability), illness or impairment; or

any assessment of the fitness of a person undertaking, or seeking to undertake, (including without any fee or reward) work or any other activity that directly involves acting as an advocate for aged persons or persons with a disability (including an intellectual disability), illness or impairment in legal proceedings; or

any—

disciplinary or fitness inquiry or investigation; or

enforcement action or proceedings (including for the suspension or cancellation of a registration, licence, accreditation or other authorisation or authority), associated with a person within a preceding paragraph (Part 7 of Schedule 1);

in relation to activities associated with a character test, being:

any assessment of whether a person who, pursuant to statute, has obtained, or is seeking, registration or enrolment, or a licence, accreditation or other authorisation or authority, in or in relation to an occupation, profession, position or activity, is a fit and proper person or a person of good character;

any—

disciplinary or fitness inquiry or investigation; or

enforcement action or proceedings (including for the suspension or cancellation of a registration, licence, accreditation or other authorisation or authority), associated with a person within the preceding paragraph (Part 8 of Schedule 1).

Under the current provisions, once a conviction is spent (either automatically or for an eligible sex offence by order of a qualified Magistrate) a further application may be made to a qualified Magistrate under section 13A of the SC Act that the spent conviction is not disclosed one or more of the following three excluded purposes:

care of children (Part 6 of Schedule 1);

care of vulnerable people (Part 7 of Schedule 1); and

activities associated with a character test (Part 8 of Schedule 1).

Under the Bill, this system is adapted for the purpose of spending of historical homosexual offences.

Under the Bill, the SC Act is amended so that the definition of 'eligible sex offence' is expanded to include a 'designated sex-related offence'.

The term 'designated sex-related offence' is defined as a sex offence that is constituted by consenting adults engaging in (or procuring another adult to engage in) sexual intercourse or activity that no longer constitutes an offence. In addition, this definition includes the capacity to prescribe other offences as 'designated sex-related offences'.

This means that a person who was convicted of a homosexual offence (that is no longer an offence) can apply to a qualified Magistrate for their conviction to be spent, even if they received a sentence of imprisonment,

If the qualified Magistrate finds that:

an offence is a 'designated sex-related offence'; and

the offence has ceased, by operation of law, to be an offence,

then the conviction is spent for all purposes.

Under amendments made by the Bill, these types of convictions are spent for all purposes and are no longer be disclosed in any police history check, no matter the purpose of the check (including care of children). This is only appropriate. The conduct is no longer an offence, the application of the law to this behaviour an historical anomaly and, any such historical conviction is now irrelevant.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

The measure will be brought into operation by proclamation.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Spent Convictions Act 2009

4—Amendment of section 3—Preliminary

This clause inserts various definitions that are relevant to the amendments to be effected to the other provisions of the Act. It is important to note that the definition of eligible sex offence is now to include a designated sex-related offence, which will relate to certain sex offences involving consensual sexual activities or otherwise prescribed by the regulations.

5—Amendment of section 5—Scope of Act

This amendment will allow a conviction for a designated sex-related offence to be capable of becoming spent under the scheme of the Act.

6—Amendment of section 8A—Spent conviction for an eligible sex offence

These amendments relate to the ability to obtain an order from a qualified magistrate that an eligible sex offence is spent. In the case of a designated sex-related offence, the qualified magistrate may proceed to make such an order if satisfied that the conduct constituting the offence has ceased, by operation of law, to be an offence.

7—Amendment of section 13—Exclusions

The exclusions from the operation of the Act will not apply with respect to designated sex-related offences in relation to which an order has been made under section 8A (as amended by this measure).

Debate adjourned on motion of Hon. I.F. Evans.

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