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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-12-02 Daily Xml
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SPENT CONVICTIONS (NO. 2) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 19 November 2009. Page 4095.)

The Hon. S.G. WADE (11:37): I rise to indicate that the opposition supports this bill. We commend the member for Fisher in another place and the Hon. John Darley for bringing this issue to the parliament. The bill provides for certain convictions for minor offences to be spent after a specified period of time has elapsed. Provided there are no further convictions, convictions relating to adults or children tried as adults that did not result in a gaol term of more than 12 months will be spent after a period of 10 years. For juvenile offenders, convictions that did not result in a gaol term of more than 24 months will be spent after a period of five years.

The bill will assist many people who have encountered difficulties in their life due to a conviction for a minor offence that may have occurred many years ago. Some people suffer bureaucratic delays when travelling; some are excluded from gaining employment or admittance to a particular profession or vocation; some are precluded from holding certain licences; some are unable to be appointed as a company director; some are unable to obtain credit or insurance; and some are unable to participate fully in public life. This bill will mean that these impediments will be eased for those whose conviction has been spent.

I find it noteworthy that we have had to rely on a private member's bill to effect this reform. Yet again, the government is dragging the chain on law reform. South Australia is one of only two jurisdictions in the whole of Australia without such legislation. Internationally, spent conviction regimes have been established in many Western countries, including most members of the European Union, the United States, Canada and Japan.

This bill is about society's interest in not branding offenders for life but encouraging them to deal with their offending behaviour and to reduce the risk of reoffending, primarily not for their sake but for the sake of potential future victims. This government is more interested in public relations than public safety, but we are glad that the member for Fisher and the Hon. John Darley have done what the government should have done. The opposition supports the bill.

The Hon. CARMEL ZOLLO (11:39): The government supports the bill, which was introduced by the member for Fisher in the other place, and notes that it is based on the model spent convictions bill prepared for the Standing Committee of Attorneys-General (SCAG).

Most jurisdictions in Australia have spent convictions legislation, with the exception of South Australia and Victoria. Internationally, spent convictions regimes have been established in many Western countries, including most members of the European Union, the United States, Canada and Japan.

Spent convictions legislation has been the subject of debate for many years. In the 1970s, the Australian Law Reform Commission and other state law reform commissions, including the South Australian Law Reform Committee, examined and supported the desirability of spent convictions legislation. The Law Reform Committee supported the seminal UK Howard League for Penal Reform report (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', which led to the Rehabilitation of Offenders Bill 1991, later renamed Spent Convictions Bill 1991. The bill was opposed and lapsed.

The Royal Commission into Aboriginal Deaths in Custody 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 period of time.

The purpose of spent convictions legislation is to reduce the stigma of a criminal conviction. As members of parliament, I am sure that, from time to time, we have all received correspondence from constituents expressing concern that a minor conviction many years before still has to be declared on employment applications, or expressing similar complaints. The legislation will help a person with an old conviction from experiencing discrimination in obtaining lawful employment, acquiring some licences, appointment as a company director, obtaining credit or insurance, participating in public life, and admission to a profession.

The policy basis of a spent convictions scheme is one of rehabilitation. The legislation will assist this by providing an incentive for convicted offenders to rehabilitate themselves and rewarding offenders once that rehabilitation has been achieved.

The legislation will achieve those aims by allowing for non-disclosure of a spent conviction, limited access to spent conviction information to 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.

For the purpose of the bill, a conviction includes a formal finding of guilt by a court, formal findings of guilt, findings where offences have been proved, as well as offences that have been taken into account. The bill provides that a conviction will become spent once a specified time has lapsed, during which the individual has not been convicted of any further criminal offences. The specified time is five years for juveniles and 10 years for adults.

Offences are eligible to become spent only where a sentence of imprisonment is not imposed or where, in the case of adults, a sentence of imprisonment of 12 months or less is imposed. For juveniles, the period of imprisonment or detention must be 24 months or less. The exceptions to this are convictions of body corporates or convictions of a prescribed class (that is, sex and other prescribed offences). Further offending within the prescribed period, excepting minor offences, would extend the qualifying period.

As stated, this bill does not allow convictions for sex offences to become spent. This is one area where consensus is difficult, as people come at it from differing points of view. Some argue that sex offences that meet the eligibility criteria should become spent in the normal way. It is argued that even the most serious offences would rarely be eligible to become spent because the sentence of imprisonment would be likely to exceed the limits proposed in the legislation. Others take the view that sex offences should become spent only by court order. This would allow the court to examine the nature of the offending and the rehabilitation of the offender.

A further view—and the one adopted in the bill—is that sex offences should not be eligible to be spent at all. These differing views are reflected in the positions adopted in the jurisdictions with spent conviction legislation. Currently the commonwealth and Queensland permit sex offences to become spent in the same way as other offences. Western Australia permits them to become spent on court order only. Other Australian jurisdictions that have these laws do not permit sex offences to become spent.

The government supports the approach adopted in the bill but, in doing so, recognises that this could still place stigma on people convicted of relatively minor sex offences many years ago. It will also affect those people who have been convicted for what are often called 'young love' offences. Although the government would not support the automatic spending of sex offences, it will monitor the operation of the legislation to see whether there should be any court-based system for sex offences generally or for particular types of sex offences. Other features of the bill include:

it does not affect legal processes that may arise from a spent conviction, including for example breaches of sentence conditions, disqualification, fine enforcement proceedings, demerit points schemes and the exercise of any enforcement powers or other processes by a justice agency;

it proposes mutual recognition for jurisdictions that have corresponding laws; and

it protects a person from having to disclose a spent conviction, including any legal process associated with the offence or conviction. It also protects a person's appointment to a position where there has been no disclosure.

Wrongful disclosure offences 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. The defences to unlawful disclosure offences include:

where a person consents to the release of information about his or her spent conviction;

good faith disclosures by persons provided that they have taken steps to avoid breaches of the legislation by implementing appropriate safeguards; and

continuing disclosure of a spent conviction in published materials that cannot reasonably be altered, for example, online publications.

The bill recognises that, despite a spent conviction scheme, there will still be some situations in which disclosure of a conviction is relevant. To this extent, schedule 2 is an important part of the bill in that it sets out the exclusions to the scheme. These include disclosure for the purposes of:

the investigation and prosecution of offences;

national security;

evidence before courts and tribunals, as well as proceedings for 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 requiring licences for which there is a character test; and

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

In these cases the government accepts that an individual's interest in putting an offence behind him or her is outweighed by the public interest in public safety and protection.

As mentioned, the government supports the Spent Convictions (No. 2) Bill, and expects that the legislation will assist with the rehabilitation and reduction of recidivism in offenders by breaking down barriers to employment faced by many people who have a criminal conviction.

The Hon. R.D. LAWSON (11:49): I rise to briefly indicate my position on this bill. I have always supported spent convictions legislation and, as the Hon. Carmel Zollo indicated in the contribution she made a moment ago, legislation of this kind has existed in other jurisdictions for many years.

It is worth noting this government's appalling record in relation to spent convictions legislation. Late in the day, late in this term of parliament, the government has finally decided to support a private member's bill. Notwithstanding the fact that—

The Hon. P. Holloway: I thought you would be grateful that we do. We support more private members' bills than any other government in the history of this state.

The PRESIDENT: Order!

The Hon. R.D. LAWSON: This is a matter on which the government had issued discussion papers, had said it was interested in national legislation being developed by the Standing Committee of Attorneys-General, and the like; yet, hypocritically, the government decides that it will not actually introduce a bill itself. It will not allow itself to be accused of being soft on crime, so it will support a private member's bill through the back door.

I commend the Hon. Bob Such, because over the years he has introduced a number of bills for the introduction in our state of spent convictions legislation. He introduced a bill in 2003, and I remind the council that at that time, in May, the Attorney-General, in one of his then regular conversations with Bob Francis on radio 5AA, expressed the view that he was sympathetic to the position adopted by former attorney-general Trevor Griffin. He said:

Trevor quite rightly said that if we introduce such a system it would be a system of organised lying…whereby the government would deny that people had convictions when they did…

So in May 2003 Attorney-General Michael Atkinson was expressing views that were somewhat antipathetic to spent convictions legislation. In the first half of the following year the Hon. Dr Such introduced another bill, and the Attorney-General responded (once again speaking on radio on Bob Francis's show) by expressing reservations. However, I must admit that he did express some sympathy for the proposition that such legislation should be introduced. On that occasion he said:

…when I became Attorney-General—

that would have been in 2002—

I found out that if you go to court and you are found guilty of a minor offence and then the magistrates says, 'You've been a good straight person all your life and this is comparatively trivial offending, what I will do is I will find you guilty, but no conviction recorded'…people leave the court and they think, 'Good, I'm over that,' but in fact it does go on your record.

The Attorney-General went on to say, 'That does not seem fair to me.' That was a position the Attorney-General was expressing in 2004.

In other statements he made at that time he said he was aware, as I think most members would be aware, of cases where people seek a licence or make an application for a job but, because at some time in the past, sometimes many years ago, they had been convicted of 'carnal knowledge', as it was then called, now unlawful sexual intercourse, a so-called 'young love' offence—the offender might have been 17 and the girl 15 and he was convicted of carnal knowledge—that remained on people's records. Those people find it difficult, especially in the current climate, 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.

I think it is disappointing that the bill which is currently before us does not provide any relief for people caught in that situation. I think all members will have had stories brought to them of people who are in that situation, yet here we are, not addressing the situation at all and not even providing, as is provided in some other states, for the capacity for a person in that situation to obtain an order from the court, for example, expunging the record so that that offence becomes a spent conviction. I think that is an issue that the government, had it shown more spine in relation to this matter, could have pursued.

I mentioned the Attorney-General's admission that only when he became Attorney-General in 2002 did he learn that, when a magistrate says, 'No conviction recorded', that actually goes on police records and is treated by the police as a matter which should be disclosed if an inquiry is made about a person's record. You might think you have escaped with no criminal conviction, and you can truthfully answer the question, 'Have you ever been convicted of a criminal offence?' in the negative but, when your employer or prospective employer goes to get a police check, they find that something is recorded as 'No conviction recorded', but it is certainly not a clean record. I suppose I should ask the member who introduced the bill whether he has any views on resolving that issue.

So, whilst expressing support for this bill and commending the Hon. Bob Such for introducing it, I cannot let the occasion pass without placing on the record that this government, and particularly this Attorney's response, have been hypocritical. As I mentioned, an extensive discussion paper was issued in 2004. The government has known for years that there is widespread community support for spent convictions legislation and that it exists in every other jurisdiction yet, in order to maintain an entirely false tough on law stance, the government has not embraced what is a sensible solution and, even now, it seeks to embrace it only by supporting someone else's bill. Unfortunately, it is typical of this government, which, fortunately, the people of South Australia will throw out in March next year.

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (11:58): I thank the Hon. Mr Lawson for his contribution, but I must at least put on record some defence of the Attorney, in that I believe this government has supported more private members bills than has any other government in the history of this state. A number of them have gone through. There was Mr Darley's bill yesterday in relation to land valuation, and there was the regulated trees bill which Mr Hood had reintroduced, although it was a government bill. There have been a number of others, including at least four or five which the government will support today and which will come into legislation—more, I suggest, than has ever happened in the history of this state.

Does it matter who introduces the bill? One of the more significant bills was the one which the Hon. Andrew Evans introduced and which this government supported in relation to removing the statute of limitations on certain offences, and that led to a significant reform in that area. There have been a number of important bills, and I would suggest that this government has distinguished itself by supporting measures other members have introduced. There is a certain limit on time and a number of priorities that the government has but, where members have done the work and come up with—

The Hon. Carmel Zollo interjecting:

The Hon. P. HOLLOWAY: Yet another example is Mr Dawkins' bill on surrogacy. There have been a number of cases. If you went back through the history of this state—

The Hon. J.S.L. Dawkins: That was a conscience vote.

The Hon. P. HOLLOWAY: Yes, but I still think that, if you look at the number of private members bills, there would still be more than at any other period in this state's history. I think it is to the credit of the Attorney-General and this government that we have adopted that approach, rather than him being subject to a tax.

The Hon. J.A. DARLEY (12:00): In answer to the Hon. Robert Lawson's question, my understanding is that the bill does not address the issue of where a conviction is not recorded, and perhaps that should be looked at in the future. I thank honourable members for their contributions. This legislation is long overdue.

Bill read a second time and taken through its remaining stages.

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