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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-07-02 Daily Xml
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SPENT CONVICTIONS

In reply to the Hon. R.D. LAWSON (12 November 2008).

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business): The Attorney-General has provided the following information:

1. The Hon. Mr Lawson has asked three questions. First, he asked when the government will introduce legislation about spent convictions. The answer is that this depends on the progress of the national project to design model laws on this topic. In December, 2008, Attorneys-General around Australia published a draft model Bill and a discussion paper inviting comment on the proposals by late January 2009. All comment will be taken into account by the Standing Committee of Attorneys-General in deciding on the final form of the model Bill. The matter is on the agenda for the Committee's August meeting. The government hopes to introduce a Bill to Parliament based on the final form of the model Bill once that model has been adopted by the Standing Committee of Attorneys-General.

2. Second, he asked what is the justification for the government's delay in introducing such legislation. The answer is that the government wishes South Australia to take part in the national project in the hope of a nationally-consistent approach to this question, including mutual recognition provisions so that a conviction, once spent in the jurisdiction where it was incurred, is spent in all. If the government were to introduce legislation without waiting for the national project to be completed, we would only be coming back to the Parliament soon thereafter to amend that legislation when the national model is settled. That could cause confusion.

The Minister for Police has provided the following information:

3. South Australia has no legislation to permit the deletion of an individual's offender history and there is no position within the State that has authority to suppress or expunge offences.

The State Records Act 1997 prohibits the inappropriate destruction of information unless instructed by a specific retention/disposal ruling and all offender history details are classified for permanent retention.

The Commissioner of Police has advised that the South Australia Police's (SAPOL's) information release practice is based on the Spent Conviction provision of the Commonwealth Crimes Act 1914, which states a conviction will be regarded as being 'spent' or 'inactive':

If at the time of the commission of an offence, the person was an adult and ten years have elapsed (or in the case of a child five years have elapsed) since the recording of the conviction and the person has not been convicted of a further offence.

Previous offences attracting a penalty of more than 30 months imprisonment are exempt from being spent.

A conviction will be disregarded from the date that it is quashed, set aside or a pardon issued.

Under the Commonwealth Crimes Act 1914, Spent Convictions Scheme Exclusions (October 2004) designated offences are exempt from being spent if the person is working with children or intellectually disabled persons.

A designated offence means either a sexual offence or any other offence against the person if the victim of the offence was under 18 at the time the offence was committed.

SAPOL's information release practice relates to matters that are found proven in a court of law. In accordance with the Criminal Law (Sentencing) Act 1988, Section 15 and 16, all court hearings with an outcome of 'without conviction' are considered to be a finding of guilt.

'Spent' offences are not released unless required by an Act, Registration Board, requested for Court purposes, or involvement in certain areas eg childcare.

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