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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-09-28 Daily Xml
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Spent Convictions (Part 8A Findings) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (12:26): Obtained leave and introduced a bill for an act to amend the Spent Convictions Act 2009. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (12:27): I move:

That this bill be now read a second time.

The Spent Convictions (Part 8A Findings) Amendment Bill 2023 I introduce today amends the Spent Convictions Act to bring findings made under part 8A of the Criminal Law Consolidation Act 1935 within the spent convictions regime.

Part 8A of the Criminal Law Consolidation Act sets out the process and outcomes that apply when a person is facing criminal charges but there is a question about whether they were mentally competent to commit the offence or are mentally unfit to stand trial. The Spent Convictions Act sets out a regime providing for eligible convictions to be 'spent' after a designated period of crime-free behaviour. In general, a spent conviction is not required or permitted to be disclosed to, and may not be considered by, employers or prospective employers.

A finding of not guilty by reason of mental incompetence or unfitness to stand trial under part 8A of the Criminal Law Consolidation Act is not treated as a conviction for the purposes of the Spent Convictions Act. However, as part of the information release process for criminal history checks, part 8A findings are included along with convictions. This creates a situation where a person who is found not guilty of an offence by reason of mental incompetence, or due to mental unfitness, can never apply to have that finding removed from their criminal record in the same way as a person who was instead convicted of the same offence.

This bill addresses this by requiring a part 8A finding to be treated as a conviction for the limited purpose of the Spent Convictions Act only. It is worth explaining, in general terms, how both part 8A of the Criminal Law Consolidation Act and the Spent Convictions Act operate at present, to put the changes contained in the bill in context.

In criminal matters, a court may make a finding of not guilty because of mental incompetence or mental unfitness to stand trial in accordance with part 8A of the Criminal Law Consolidation Act. A part 8A finding will be made when the court is satisfied that the objective elements of the offence are proven but the defendant is either found to have been mentally incompetent to commit the offence or mentally unfit to stand trial.

A person subject to a part 8A finding will be declared to be liable to supervision and may either be released unconditionally or be subject to supervision in the community or via detention. When a person is subject to supervision, the court must set a 'limiting term' equivalent to the length of imprisonment that would have been imposed if the person had been convicted of the offence. In this way, part 8A of the Criminal Law Consolidation Act ensures that people who are so mentally unwell that they should not be held criminally responsible for their offending behaviour are not convicted, while ensuring community protection is achieved where required.

Turning now to the Spent Convictions Act, convictions for the most serious offences can never become spent. Convictions are only eligible to become spent if:

a sentence of imprisonment was either not imposed at all or was 12 months or less (or 24 months' detention in the case of a juvenile); or

they relate to a 'designated sex-related offence' (that is, offences involving consensual sexual activity); or

they relate to a 'prescribed public decency offence' (offences against public decency by which homosexual behaviour was historically punished).

A conviction for an offence other than a sex offence will generally become spent automatically following a crime-free period (10 years post-conviction for adults or five years post-conviction for eligible juvenile offences). Once a conviction becomes spent, it is not required or permitted to be disclosed to, and may not be considered by, employers or prospective employers. However, the spent convictions regime is complex, containing rules about the treatment of convictions, exclusions to the rules, and exemptions to the exclusions.

Under schedule 1 of the Spent Convictions Act, several agencies and activities are exempted from the provisions that remove the need to disclose a spent conviction and create offences about disclosure of them. This means spent convictions information is still required to be provided where the exemptions apply. For example, justice agencies, intelligence agencies, the Parole Board, prescribed screening units, assessments relating to the care of children and assessments relating to employment as a police officer are some of the agencies and activities that come under these exemptions.

Under clauses 7 and 8 of schedule 1 of the Spent Convictions Act, spent convictions must still be disclosed and considered as part of assessing a person's fitness to care for vulnerable people and as part of a statutory assessment of fitness and propriety relating to an occupation, profession, position or activity (often referred to as a 'character test').

However, under section 13A of the Spent Convictions Act, a person may apply to a magistrate for an order that the exclusions in clauses 7 and 8 do not apply in relation to an offence. The magistrate is required to consider various factors before making such an order, including the circumstances and seriousness of the offending, whether the offence involved a vulnerable person, and whether the removal of the exclusion might present a risk to children, vulnerable people or the public, amongst other factors.

The effect of an 'exemption order' is that the applicant is permitted to revert to not having to disclose those convictions, including when assessing a person's fitness to care for vulnerable people. However, there is also a legislative exclusion to an exemption order permitting a prescribed screening unit to continue to access and rely on those convictions.

Similarly, a convicted person can apply to a magistrate under sections 8A, 8B and 8C of the Spent Convictions Act for a conviction for an 'eligible sex offence' (that is, one where no sentence of imprisonment was imposed), a 'designated sex offence' or a 'prescribed public decency offence' to be spent. These categories of offences do not become 'automatically' spent after the relevant period. Again, the Spent Convictions Act sets out several factors the magistrate must consider when deciding whether to order these convictions to become spent.

However, as explained at the outset, a part 8A finding is not a conviction. This means a part 8A finding does not become automatically spent in the same way a conviction for the same offence does. It also means that although the part 8A finding will appear on a person's criminal history, that person is not able to apply, under the Spent Convictions Act, to have the finding declared to be spent under sections 8A, 8B or 8C of the Spent Convictions Act, nor can they apply for an order under section 13A of the Spent Convictions Act.

This bill remedies these anomalies by providing that part 8A findings will be treated as if they were convictions for the limited purpose of the Spent Convictions Act. This means that people who have not been convicted of an offence, due to mental incompetence or unfitness to stand trial, are not treated more harshly than people who have been convicted of the same offence.

I commend the bill to the chamber and seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Spent Convictions Act 2009

3—Amendment of section 3—Preliminary

This clause makes sure that terminology used in the Act works in relation to Part 8A findings. References in the Act to a sentence of imprisonment will extend to limiting terms fixed under section 269O(2) of the Criminal Law Consolidation Act 1935 (or an equivalent under the law of another jurisdiction) and a finding by a court that the objective elements of an offence are established in proceedings under Part 8A of the Criminal Law Consolidation Act 1935 (or an equivalent under the law of any other jurisdiction) will be treated as a conviction under the Act.

4—Amendment of section 4—Meaning of spent conviction

This clause sets out when Part 8A findings that are treated as convictions for the purposes of the Act will be taken to be immediately spent.

Schedule 1—Transitional provision

1—Findings made before commencement

The amendments will apply in relation to a finding by a court whether the finding was made before or after the commencement of the measure.

Debate adjourned on motion of Hon. H.M. Girolamo.

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