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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-11-29 Daily Xml
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SPENT CONVICTIONS (MISCELLANEOUS) AMENDMENT BILL

Second Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (17:00): 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.

The Spent Convictions Act 2009 came into force on 13 February 2011 as a result of a private Member's Bill introduced by the Member for Fisher supported by Government. The Act is based on the national model Bill adopted by the Standing Committee of Attorneys-General in September 2009.

South Australia is, so far, the only state to legislate this model.

The Act provides for certain criminal offences to automatically become spent after a qualification period of 10 years (for certain purposes) 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.

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 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) and sex offences (no matter how minor) are never spent.

This means that a conviction will only become spent if, in the case of an adult, it was not a sex offence and the penalty given by the court in sentencing either did not include imprisonment or included no more than 12 months' imprisonment, and the person has not been found guilty of any further offences (other than minor offences) after 10 years.

In the case of a juvenile, a conviction will only become spent if it was not a sex offence and the person was not detained, or was detained for no more than 24 months, if the person has since completed 5 years without being found guilty of any further offences.

However, there is a further exception. Not only can a sex offence never become spent, but even an offence that would otherwise be spent must still be disclosed in some situations listed in the Act.

These include:

where the person is applying to care for or work with children;

where the person is applying to care for or work with vulnerable persons such as the elderly or disabled persons;

where the person wants to join the police force or become a prosecutor, prison officer, protective services officer or fire-fighter;

where the person applies for work with a Commonwealth agency that requires a security clearance;

where the person wishes to enter an occupation that requires a character test, for example, becoming a lawyer, security guard or liquor licensee.

These exclusions are listed in Schedule 1 to the Act.

The Member for Fisher, who introduced this legislation as a private Member's Bill, approached the Government some time ago seeking amendments to the Act to permit minor sex offences, that do not become spent automatically under the Act, to become spent on application to a court. He has cited examples known to him where the current law treats too harshly individuals who have very old and minor convictions but who since attained a long period of good behaviour.

The Attorney-General's office has also received numerous letters from and on behalf of members of the public who have been prevented from volunteering or from employment because of very old and minor convictions that appear on their police check.

For these reasons, in late 2011 the Government released a Discussion Paper concerning possible amendments to the Act.

The Discussion Paper proposed a different approach to some aspects of this reform.

In the Discussion Paper, comment was sought on a proposal that very old and minor offences would automatically become spent for all purposes, including excluded purposes, after 20 years.

As a result of feedback in response to the Discussion Paper, rather than attempt to cherry pick to which minor offences this 'automatic spending' could apply, the Bill has been drafted such that after 10 years of good behaviour, an individual would be able to apply to a Qualified Magistrate for an eligible sex offence to be spent.

The individual would need to demonstrate to the Qualified Magistrate that their conviction was so minor that it should be spent. This provision would only apply to those sex offences (referred to as 'eligible sex offences') where the offender was not imprisoned (whether suspended or not). This limitation fits within the current scope of the Act which applies only to 'eligible adult offences' (an offence committed by an adult for which a sentence of imprisonment is not imposed or a sentence of imprisonment is imposed but the sentence is 12 months or less) and 'eligible juvenile offences' (an offence committed by an adult for which a sentence of imprisonment is not imposed or a sentence of imprisonment is imposed but the sentence is 24 months or less).

In addition, the Bill amends the Act such that individuals would be able to ask the Qualified Magistrate for an order that any spent convictions may be disregarded for 1 or more of the following 3 excluded purposes:

care of, or working with, children;

care of , or working with, vulnerable people;

activities associated with a character test.

These amendments assist those members of the public who have a long history of good behaviour and who have written to us because they have been precluded from volunteering or from employment in areas such as volunteering or working with children and vulnerable persons because of very old minor offences.

Under the Bill, a Magistrate, with his or her consent, can be appointed as a Qualified Magistrate by the Chief Magistrate. While the Magistrate retains all of his or her status in exercising this function, the function is not a judicial function to be exercised by the Magistrate as a member of a court but rather more in the nature of an administrative function. This is not unusual, as judges have exercised administrative functions in their judicial capacity for a very long time (in issuing a listening device warrant, for example) and the same model was recently used for the appointment of Eligible Judges for the purposes of the serious and organised crime laws.

Under these amendments the individual applying must still have met the requirement of the qualification period under the Act, being good behaviour for a 10 year period. This reflects my intention that this new procedure should not be available to offenders whose offences were so serious so as to attract penalties that disqualify them from the benefit of the Act. That is, it is not a pathway whereby a person who was sentenced to, say, 2 years' imprisonment, could obtain an order that their conviction become spent. The Act does not currently intend that such serious convictions can become spent at all and this will not change.

In practice this new procedure will be used by persons with convictions for eligible sex offences who believe that they can persuade the Qualified Magistrate that the offence should become spent.

Under the Bill, the Qualified Magistrate may make an order that a conviction is spent, exercising their discretion having regard to whether it is in the public interest to retain the conviction or not, the nature and seriousness of the offence, all of the offender's circumstances including at the time of offending, any information contained in a victim impact statement, any harm done by the offence, the penalty imposed, related orders or requirements, the length of time since the conviction, whether the spending of the conviction and the non-disclosure of the offence to other persons might present a risk to the public (and, if so, the extent of that risk) and any other relevant factors.

Under the Bill, the Commissioner of Police and the Attorney-General are notified of any application and are both entitled to make submissions to the Qualified Magistrate in writing and/or require a hearing about the application.

In addition, when a conviction has become spent either automatically under the Act or by order of the Qualified Magistrate, amendments to the Act are made so that an individual may also apply to the Qualified Magistrate for an order that the conviction is spent for 1 or more of the 3 excluded purposes in clauses 6, 7 and 8 of Schedule 1 to the Act, that is, care of children, care of vulnerable adults or occupations involving a character test.

Some old and minor convictions may be of little or no present-day relevance to the question of whether a person is fit to hold an occupational licence or to work with children or vulnerable adults. In that case, there is no merit in their disclosure to anyone, because they are not indicative of any public danger or of bad character on the part of the convicted person.

Under the Bill, the Qualified Magistrate may make an order that a spent conviction be disregarded, exercising their discretion having regard to whether it is in the public interest to disregard the conviction or not, the nature and seriousness of the offence, all of the offender's circumstances including at the time of offending, any information contained in a victim impact statement, any harm done by the offence, the penalty imposed, related orders or requirements, the length of time since the conviction, whether non-disclosure might present a risk to children, vulnerable persons or the public more generally (and, if so, the extent of that risk) and any other relevant factors.

In addition, in the case of an application that relates to the purpose of caring for children, the Qualified Magistrate must consider whether the spent conviction was for an offence that involved a child or children. In the case of an application that relates to care of vulnerable persons, the Qualified Magistrate must consider whether the spent conviction was for an offence that involved a vulnerable person or persons.

Any such applications that relate to working with children or working with vulnerable adults must be provided to the relevant Minister, as well as to the Attorney-General and the Commissioner of Police, so that they each may make submissions to the Qualified Magistrate in writing and/or require a hearing about the application.

It will be possible to have both applications considered together, that is, where the conviction is one that does not become spent automatically after the 10 years of good behaviour then the individual may apply to both:

have the conviction spent; and

have the conviction disregarded for 1 or more of the 3 excluded purposes.

No Conviction Recorded

Under section 16 of the Criminal Law (Sentencing) Act 1988 the court has the power to decline to record a conviction even where the person is found guilty of the offence, if the court believes that the person is unlikely to reoffend and that the offence was minor or that for some other reason a conviction should not be recorded.

The Act however, provides that the term 'conviction' includes such a finding of guilt where a conviction was not imposed. This means that unless such a 'non-conviction' has automatically become spent under the Act, it will appear on a police check as a conviction.

The desire of the court that a conviction not be recorded is therefore circumvented by the Act.

The Discussion Paper sought comment on a proposal that if a court declares that no conviction be recorded against an individual, then this will actually be the case. That is, when a criminal history check is undertaken, then this finding of guilt is not listed as a conviction.

As a result of the feedback from the Discussion Paper the Bill was drafted adopting this proposal.

The Bill makes a number of amendments to the Act with respect to the spending of a conviction in cases where a court has declined to record a conviction even where the person is found guilty of an offence. Under the amendments these 'non-convictions' are considered to be automatically spent.

Pardons and Quashed Convictions

The Act operates in a curious way with respect to offenders who have been granted a pardon and convictions that have been quashed.

A pardon is not the equivalent of an acquittal, but is designed to relieve the convicted person from the consequences of the conviction. A pardon should operate to remove all pains, penalties, punishments and disabilities arising from the conviction, but does not eliminate the conviction itself.

Pardons are not lightly granted and in South Australia convention dictates that a pardon would not be granted in the absence of consent from the Executive. Furthermore, a pardon will generally not be granted unless the petitioner demonstrates that they are both morally and technically innocent of the offence and there exists no avenue of appeal against their conviction.

When determining whether or not to grant a pardon, the question for the Governor is whether the ongoing effect of the offending is such that it far exceeds that intended, with the consequence that the Governor is justified in relieving the individual of that burden. A pardon should only be granted upon considerations which are supported by the evidence and which make an appeal not only to sympathy but also to well-balanced judgment.

The offender bears the burden of establishing the grounds for the granting of the pardon. It is an exceptional remedy to be granted in exceptional circumstances and the offender is required to provide any and all information touching upon the impact of the record of their offending on their lives such that the pardon is warranted. Further, the offender needs to provide evidence that they are of standing in the community and of good character and have been so for so long that, again, the ongoing effect of their offending is now disproportionate and significantly so. Generally, affidavits and supporting documentation are needed and the offender would make submissions, supported by this material, as to why the pardon should be granted.

Despite this, and despite the principle that a pardon should operate to remove all pains, penalties, punishments and disabilities arising from the conviction, under the current operation of the Act although a conviction is considered as spent if a person is granted a pardon and although it is disregarded for the purposes provided for in Schedule 1, there is an exception. The exclusion of working with children, which includes caring for children or volunteering with children, is still applied to a pardoned conviction. Meaning that if a criminal history check is sought in relation to care of children then the pardoned conviction is disclosed.

The Act operates in this same way for quashed convictions.

Under the Act a conviction is 'quashed' if the conviction, the finding of guilty or finding that a charge is proven is either quashed or set aside.

Whether a verdict of guilty should be quashed or set aside is often expressed in terms of the verdict being unsafe or unsatisfactory, or unjust or dangerous. Such questions are considered by criminal courts of appeal. This is a question of fact and in cases of a verdict of guilty returned by a jury, the question which the courts must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

Courts will not lightly quash a conviction on appeal and if they do so, this quashing of the conviction will either result in the court directing that the verdict be one of acquittal or they may direct a re-trial. In either case, the accused is returned to the position of being innocent until proven guilty.

The Act should reflect this and currently it does not. Under the Act, an offence is considered as spent if the conviction is quashed. However, as is the case with a pardon, convictions that are quashed are disregarded for the purposes provided for in Schedule 1, but with an exception. The exclusion in clause 6, being working with children, is still applied, meaning that if a criminal history check is sought in relation to working with children then the quashed conviction is disclosed.

There does not appear to be any reason why an offence that is quashed or pardoned should continue to be disclosed for that one sole purpose. The Bill therefore amends the Act such that none of the exclusions set out in Schedule 1 apply in relation to quashed or pardoned offence, so that the individual is returned to the same position as if the conviction never happened. That is, the conviction is spent for all purposes.

This Bill is the result of extensive public consultation and addresses concerns raised by the community that the current law treats too harshly individuals who have very old and minor convictions, but who have since attained a long period of good behaviour. Such people may make a mistake in their early years before maturing and going on to lead exemplary lives. Decades later, the individual may be seeking certain work or may be wishing to volunteer, for example, with children or with the aged, or at their grandchild's school, and they are unfairly precluded from doing so because of a mistake made in their youth. This Bill is a balance between allowing such persons to seek to have their conviction spent and disregarded, whilst continuing the protection of children and the vulnerable in our community.

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

The term qualified magistrate is to be used under the Act.

5—Amendment of section 4—Meaning of spent conviction

This amendment will provide that a formal finding of guilt or a finding that an offense has been proved in a case where no conviction is recorded will, as deemed to constitute a conviction under this Act, be taken to be immediately spent (so that the person may immediately obtain the benefit of the Act).

6—Amendment of section 5—Scope of Act

This is a consequential amendment on account of the proposal to allow a conviction for an eligible sex offence to be capable of being spent under the Act if so ordered by a qualified magistrate under the scheme set out in this Bill.

7—Insertion of section 6A

This clause sets out a scheme for the appointment of magistrates as qualified magistrates for the purposes of the Act.

8—Amendment of section 7—Determination of qualification period

This amendment is consequential on the enactment of proposed new section 4(1a).

9—Amendment of section 8—Spent conviction—general provision

These are consequential amendments.

10—Insertion of section 8A

An application will be able to be made for an order by a qualified magistrate that a conviction for an eligible sex offence becomes spent under the Act once the qualification period for the conviction has been completed. The magistrate will be required to take into account a number of criteria specified in new section 8A(5), and such other matters considered relevant by the magistrate.

11—Amendment of section 13—Exclusions

These amendments relate to 2 matters. Firstly, the exclusions under Schedule 1 of the Act will not apply in relation to a finding of guilt or a finding that an offence has been proved that is to be treated as being immediately spent as a conviction under section 4(1a). Secondly, an exclusion under clause 6, 7 or 8 of Schedule 1 will not apply if a qualified magistrate makes an order to that effect under new section 13A.

12—Insertion of section 13A

An application will be able to be made for an order by a qualified magistrate that 1 or more of clauses 6, 7 and 8 of Schedule 1 do not apply in relation to an offence committed by the applicant. The magistrate will be required to take into account a number of criteria specified within section 13A and such other matters considered relevant by the magistrate.

13—Insertion of Schedule 2

New Schedule 2 relates to the conduct of proceedings before a qualified magistrate for the purposes of the Act.

Debate adjourned on motion of Hon. D.W. Ridgway.

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