Knowler, Jeanette --- "Living down the past - Spent convictions schemes in Australia" [1994] PrivLawPRpr 80; (1994) 1(6) Privacy Law & Policy Reporter 103

Living down the past - Spent convictions schemes in Australia

Jeanette Knowler

Many people with a criminal record subsequently establish themselves as respectable members of the community. Conversely, a surprising number of prominent individuals have a criminal record.

The only criminal history that many ex-offenders have involves relatively minor offences, often committed when they were young. Despite subsequent lengthy periods of crime-free behaviour, a substantial proportion of these people may be unable to live down past offences because they are required to reveal their criminal history to employers, insurers, licensing bodies and the like, thereby often becoming the target of discrimination. Even people who have suffered no real problems as a result of having an old criminal record may feel insecure because of the possibility that one day they may be embarrassed by details of their past convictions being revealed.

Spent conviction schemes are designed to give people a chance to live down a minor criminal conviction. The concept of spent conviction laws is linked to a value which has considerable influence in our society that people who do wrong should be given a second chance because they have the capacity to reform their ways.

A further justification for establishing spent conviction schemes is the fair administration of justice. The law prescribes a punishment to be imposed for the commission of an offence and once that has been served the offender has paid his or her ''dues' to society. When society is satisfied that the person is not likely to re-offend, it should relieve that person of the stigmatising effect of his or her criminal conviction. Otherwise the punishment, in effect, extends beyond that imposed by the court and the system does not meet its fundamental objective of making the punishment just.

Similarly, it can be argued that continued discrimination after a person has fulfilled the terms of their criminal conviction is a violation of human rights.

Experience has shown that the philosophy and values which underpin support for spent conviction schemes are well founded. Many people do reform after they have served their convictions. The Howard League for Penal Reform, chaired by the eminent lawyer and judge Lord Gardiner, found in 1972 that the longer a convicted person ''goes straight', the less likely it is that he or she will commit another crime. A sample survey that the Howard League conducted in the UK showed that, of 4,000 male first offenders convicted on indictment, 64 per cent had not re-offended five years after serving their convictions, and 50 per cent had not re-offended after ten years. The number of people who had been convicted again more than ten years after their last conviction was minimal.

The Howard League's report, Living it Down - the Problem of Old Convictions, put forward recommendations which formed the basis of UK legislation in the Rehabilitation of Offenders Act 1974. This legislation has strongly influenced Australian legislation, at both the Federal and State level.

A study in Australia by the NSW Bureau of Crime Statistics and Research in 1979 produced results which were similar to those found in the UK. Almost 60 per cent of offenders who received non-custodial sentences had not been convicted again in a ten-year period. Among those who were sentenced to custody, 30 per cent had not been convicted again within the next ten years.

Most societies recognise that it is in both the individual's and the community's best interests to accept offenders back into the community after any sentence has been completed, and welfare and advisory services are commonly provided to assist with rehabilitation. Spent conviction schemes carry this a step further by allowing some ex-offenders to effectively ''bury' their past

at least as far as the general community is concerned. The schemes are based on the assumption that the longer an ex-offender lives crime-free, their criminal history is a less adequate predictor of future behaviour. Such schemes attempt to remove any unfair barrier a criminal record imposes and which could possibly harm the ex-offender's prospects of resuming a normal place in society.

Spent conviction legislation should not be seen as a sign that governments are ''going soft' on criminals but as a method of ensuring that the punishment suffered by an individual with criminal convictions is fair and just and in accordance with the law.

Creating a statutory lie

One widely-adopted approach is to conceal the criminal record or to treat it as if it has not occurred. This approach, favoured by most European countries, including the UK, allows the record to be either sealed or ''expunged' where a person is considered to be rehabilitated. Either way, the record is effectively hidden from the public eye.

However, in certain circumstances all relevant criminal information needs to be accessible. In view of these cases, it has been argued that complete expungement, where all records are destroyed, may not be appropriate. When a record is expunged, it is treated in law as if it never happened. Alternatively, where a record is sealed, disclosure of the conviction after the expiration date would in most cases be prohibited. However, the record of the conviction would remain and in certain cases the person would still be required to disclose the conviction.

The practice of sealing a record has been adopted in the UK. Where a person has not re-offended during a prescribed period, the law generally treats the conviction as if it had not happened. The rehabilitated person does not have to disclose the fact of their conviction to anyone. A person who is aware of the spent conviction may not take it into account for purposes such as employment or disclose that information to any one else.

The main criticism of this approach is that it creates a ''statutory lie', as a person whose conviction is covered by the scheme is able to lawfully, but untruthfully, say ''I have no convictions'.

No questions asked

Another approach that has been considered in developing spent convictions schemes, is an arrangement where employers, insurers and others who are in a position to make decisions that could affect the ex-offender's livelihood or lifestyle, should be restrained from asking questions about spent convictions except in a limited form. Questions would be framed in terms of the legislation with suggested wordings such as, ''have you any convictions which are not covered by the operation of law?'

The New Zealand Penal Policy Review Committee favoured this approach in 1981. The committee recommended that it should be made unlawful to publish, ask questions about, or require information concerning a person's conviction after a prescribed rehabilitation period.

While this approach avoids ''legislating a lie', the Howard League report considered the underlying principle of this type of scheme undesirable because, in order to be effective, it would have to be enforced by law. This means that anyone asking questions beyond the suggested wording would become guilty of an offence. The report suggested that people should be able to ask whatever questions they like. Rather than enforcing a more charitable social attitude towards rehabilitated persons, the League maintained that the government should be looking to enlarge the freedom of those who have to answer the questions.

Applying for protection

Under this approach, an offender is permitted to make an application to an appropriate body after a minimum period has elapsed. The body then decides whether or not the person is rehabilitated and ought to be given the benefit of the scheme.

This arrangement has been adopted in Canada. It allows for applications made to the Solicitor-General to be considered by the National Parole Board. If the application is successful a pardon is granted. The record of the conviction is held separately and must not be disclosed to anyone without the Solicitor- General's consent. The pardon can be revoked by the Governor in Council. This discretion is often exercised where the applicant ceases to be of good conduct.

This scheme does not allow the individual to deny the fact they have a criminal record. Rather, the pardon is considered to be evidence that the ex- offender has been rehabilitated and the conviction should not be taken into account.

While this scheme does allow for personal assessment of the ex-offender's application, a number of disadvantages are apparent. In particular, a person wishing to have a conviction declared spent would face a dilemma in considering whether or not to make the application because the facts and circumstances of the conviction would be aired in public during the hearing. This seems to work against the aim of allowing the person to ''live down' their criminal history.

Whether for this reason, or because they either do not know about the scheme or do not feel the need to be granted a pardon, only a small proportion of eligible people take advantage of the Canadian system. Schemes of this type are also more costly and complex to administer than other arrangements.

Guaranteed protection after a period of time

The alternative to schemes in which ex-offenders apply for protection is an approach whereby a conviction is automatically considered ''spent' after a prescribed period of time. This system is easier to administer but relies on the assumption that a person is in fact rehabilitated by the end of the particular period. The question then arises as to what is considered to be a sufficient rehabilitation period.

The length of the rehabilitation period needs to be sufficiently long so that the community can be confident that there is little likelihood that the individual will re-offend. On the other hand, the benefits of the scheme should be available within a reasonable period of time if they are to be of any real assistance.

One practice, which has been adopted at the Federal level and in some States in Australia, is to set a standard period of time for rehabilitation. The Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), for example, adopted a rehabilitation period of ten years for an adult. This decision was based on the Howard League's finding that the risk of someone re-offending after ten years of crime-free behaviour is negligible.

In other schemes, the period which has to expire before society recognises the person as rehabilitated varies with the gravity of the original offence.

The UK's spent convictions scheme adopted this practice and operates on a sliding scale determined by reference to the penalty imposed. While it provides for greater flexibility, it does add to the complexity of administration and the difficulty of community education.

Neither the British scheme nor the Australian schemes (barring Western Australia) provide for the statutory rehabilitation of a person sentenced to imprisonment for more than 30 months. This differs from the majority of schemes, which recognise that even people who have been convicted of very serious offences may later be rehabilitated, although they may be required to live crime free lives for a longer period of time, compared to other ex-offenders, before they qualify for protection. It is argued that, where there is evidence of rehabilitation, the removal of the stigma attached to a criminal history should apply equally to serious offences as it does to minor offences.

Australian approaches

Australia has what has been described as a potpourri of legislation dealing with spent convictions because, under our Federal structure of government, each State, as well as the Commonwealth, administers its own criminal justice system.

Federal and State Acts differ in a number of areas, including: what convictions the legislation covers, the length of the rehabilitation period, and the mechanisms for obtaining the spent conviction status. This has the effect of creating different classes of citizens depending on where they live and whether they were convicted under Federal or State law. This can lead to a situation where an ex-offender may be denied a job in Victoria because of his or her criminal record but could have been successful in applying for the same job in New South Wales where there is protection under a spent conviction scheme.

The situation becomes even more confusing for residents of the ACT where, prior to self-government, an offence which was incurred against an ACT law was a territory offence. Persons with these convictions are afforded the protection of Part VIIC of the Commonwealth Act, however, convictions under the laws of the ACT since self-government are considered to be convictions under State law.

The confusion created by this division of authority and the differences between the schemes is perhaps the greatest problem confronting the implementation of the Commonwealth scheme.

Protection of human rights

All Australians with a criminal record are afforded a degree of protection from unfair discrimination in employment and occupation with regard to their dealings with Federal, State and local government bodies and private employers. This protection is provided by the Federal Human Rights and Equal Opportunity Commission Act 1986, which puts into effect Australia's commitment to ILO Convention No 111, the Discrimination (Employment and Occupation) Convention, 1958.

The Human Rights and Equal Opportunity Commission Act specifies the same forms of discrimination as those in the ILO convention, and allows for further forms of discrimination to be determined by regulation. On 21 December 1989, the Governor-General made regulations which declared an additional 12 grounds of discrimination for the purpose of the Act in relation to employment and occupation. They include discrimination on the grounds of criminal record and they came into effect on 1 January 1990.

Accordingly, the Human Rights Commission has jurisdiction to inquire into and attempt to resolve complaints of discrimination lodged by persons who allege that they have been discriminated against in employment or occupation. However, in this area it does not have any power to make final orders.

Commonwealth spent convictions scheme

In 1987, following an extensive inquiry at the request of the Commonwealth Attorney-General, the Australian Law Reform Commission presented a report which put forward recommendations for a nationally-consistent spent convictions scheme. The report was considered by a committee of all Australian Attorneys- General, who were unable to agree on the precise details of a model law. Nonetheless, they indicated in-principle support for spent convictions legislation along the lines of that which had been introduced in Queensland the year before.

The provisions of the Queensland legislation were generally similar to the recommendations of the Law Reform Commission but differed most importantly on the question of which convictions would be covered. The Law Reform Commission considered that all convictions, including for serious offences, should be included in the scheme, but the Queensland law gives protection only to convictions where sentences of less than 30 months duration were imposed.

In line with the Commonwealth-State discussions, during 1989 the Commonwealth Attorney-General introduced into Parliament the Crimes Legislation Amendment Bill which included a part dealing with pardons, quashed convictions and spent convictions. As agreed by the committee of Attorneys-General, the Commonwealth Bill departed from the Law Reform Commission's recommendations in that it did not extend protection to convictions from offences where the sentence imposed was 30 months or more.

The Bill became law on 30 June 1989 and the spent conviction scheme which it established commenced on 1 July 1990. The Parliament allowed a year after passage before the Commonwealth scheme came into effect. In that time letters were sent to all police forces (as the keepers of the criminal records routinely accessed by licensing and public sector personnel units) as to the parameters of the new law. Separate compliance notes were issued to the Commonwealth public sector and the community and the Privacy Commissioner and the government considered the requests for further exclusions.

The spent convictions scheme is established by Pt VIIC of the Crimes Act 1914 (Cth). Basically, an individual is not required to disclose a conviction or the related charge if the conviction has been the subject of a pardon, has been quashed, or is ''spent'. A conviction is spent if a pardon was granted for other than wrongful conviction or if it meets all of the following conditions:

1. It is ten years or more since the date of the conviction, or five years since the date of the conviction if the person dealt with was a juvenile.
2. The sentence imposed (not what was actually served) was a fine, bond, community service order or imprisonment for a period of less than 30 months.
3. There have not been any further offences in the ten (or five) year period.
4. An exclusion does not apply.

This protection applies throughout Australia with regard to Commonwealth and Territory laws. It also applies to State laws when the individual is dealing with a Commonwealth agency.

People and organisations which possess information about spent Commonwealth and Territory convictions are prohibited from taking it into account or, without the individual's consent, disclosing it where it is lawful for the individual not to disclose it.

Commonwealth agencies must treat information about spent State convictions with the same degree of care.

Exclusions from the scheme

While information about quashed convictions or free and absolute pardons can never be taken into account or disclosed, Div 6 of Pt VIIC of the Crimes Act provides for exclusions from the operation of the legislation with respect to spent convictions. The legislation specifically excludes the following bodies from the scheme:

(a) a law enforcement agency, for the purpose of making decisions in relation to prosecution or sentencing or of assessing prospective employees or prospective members of the agency;

(b) an intelligence or security agency, for the purpose of assessing prospective employees or prospective members of the agency;

(c) a court or tribunal established under a Commonwealth law, a State law or a Territory law, for the purpose of making a decision, including a decision in relation to sentencing;

(d) a person who makes a decision under the Migration Act 1958, the Australian Citizenship Act 1948, or the Immigration Act 1980 of the Territory of Norfolk Island, for the purpose of making that decision;

(e) a person or body who employs or otherwise engages other persons in relation to the care, instruction or supervision of minors, for the purpose of finding out whether a person who is being assessed by the person or body for that employment or engagement has been convicted of a designated offence;

(f) a person or body who otherwise makes available care, instruction or supervision services for minors, for the purpose of finding out whether a person who is being assessed by the person or body in connection with those services has been convicted of a designated offence;

(g) a Commonwealth authority, for the purpose of assessing appointees or prospective appointees to a designated position;

(h) the Cash Transaction Reports Agency, for the purpose of assessing appointees or prospective officers or members of the agency;

(i) the Australian Government Solicitor, for the purpose of instituting or conducting proceedings for Commonwealth offences;

(j) a prescribed person or body for a prescribed purpose, in relation to a conviction for a prescribed offence.

Under the Act, the Privacy Commissioner is responsible for receiving and examining any requests for exclusion from the application of the spent convictions provisions and to advise the Attorney-General whether an exclusion should be granted.

Shortly after the legislation was passed, but before the spent convictions scheme came into effect, the Privacy Commissioner undertook extensive consultations on the need or otherwise for additional exclusions. A background paper inviting applications for exclusion from the scheme was distributed in November 1989 and 140 applications were received. The Commissioner published the results, invited comment and made recommendations to the Attorney-General by the following May.

Where an application paralleled an existing statutory exemption, the Privacy Commissioner felt that normally it should be granted. However, most of the submissions received simply rejected the underlying policy aims of the legislation. No submission gave specific examples of situations where, despite an individual being a minor offender and conviction-free for ten years, the employer or financial organisation suffered detriment.

In considering the applications, the Privacy Commissioner noted that the scheme is intended to address key life-circumstances such as obtaining employment and retaining it; and engaging in financial transactions, especially insurance. Had a significant proportion of the employment /occupational licensing and financial sector submissions been accepted, these objectives would largely have been negated.

Initially, the Privacy Commissioner recommended that there be 12 additional exclusions, four of which were seen as necessary for aspects of the administration of justice; three related to the need to vet employees or personnel responsible for the protection of vulnerable groups; two related to government employment and contracting; three related to participation in sensitive activities and industries for example, legal opium poppy production; and one broad exclusion related to custodians of old records, (public libraries, university libraries, public archives offices and the Australian War Memorial).

Further applications for exclusion have been regularly received. Four additional requests for exemption have been granted on the advice of the Privacy Commissioner. Three of these parallel existing exceptions in the area of assessing applications for employment in correctional service, judicial and casino gaming and Poppy Advisory and Control Board appointments. The fourth was an extension of an existing exclusion allowing non-Commonwealth organisations the same entitlements as their Commonwealth department counterparts in considering the issuing of Aviation Security Identification Cards.

Mechanisms for complaints

The Commonwealth model was unique as compared to other models with which we are familiar, giving enforcement responsibility to a Privacy Commissioner. While unusual, the Privacy Commissioner feels that this policy approach is sensible in that it focuses attention on the information privacy aspect of this subject, and gives responsibility for enforcing the law to an agency which ought to be (and hopefully is) familiar with the practicalities of record keeping and has, hopefully, some expertise in assisting agencies in avoiding circumstances whereby a spent conviction is inappropriately transmitted, considered or used.

Where the standards of protection established by legislation are breached, an individual may lodge a written complaint with the Privacy Commissioner. Once the Privacy Commissioner has received a complaint he is generally obliged to investigate it. After investigating the complaint, the Privacy Commissioner has a number of options available to him. He can dismiss the complaint, make declarations that the respondent should employ, re-employ or promote the complainant, determine the complainant is entitled to compensation for loss or damage (including humiliation and injury to feelings) or award costs.

Enforcement of any of these orders can be made by application to the Federal Court either by the Privacy Commissioner or the complainant.

Compared to the provisions based on the ILO in the Human Rights and Equal Opportunity Commission Act 1986 (Cth), the Spent Conviction Scheme is broader, in that it encompasses more than employment and occupation, and the remedies are more extensive. The Human Rights Commissioner has the power to investigate complaints and attempt to conciliate, but his powers are not enforceable in the Federal Court and there is no power to award financial compensation.

The Privacy Commissioner's jurisdiction covers all offences (foreign, Commonwealth, State and Territory) in the case of Commonwealth agencies. It only applies, however, to the handling of ''Federal' offences, that is, Commonwealth and pre-self-government territory offences in relation to the other sectors of the Australian country. The Human Rights Commissioner's more limited powers are not constrained in this way.

State spent convictions schemes

Where State legislation on spent convictions applies, it is not overridden by the Commonwealth scheme. In order to provide uniform protection, complementary Federal and State legislation would be required. This has not been the case. Despite the original recommendation by the committee of Attorneys-General, the State and Commonwealth governments have developed a mixture of legislative frameworks and, while most have at some stage considered introducing some form of spent conviction legislation, not all States have followed the proposals through.

Queensland

While the Australian Law Reform Commission inquiry instigated by the Commonwealth Attorney-General was still in progress, the Queensland Parliament passed the Criminal Law (Rehabilitation of Offenders) Act 1986, which largely follows the British legislation.

As noted above, the Queensland and Commonwealth schemes are broadly similar. However, unlike the Commonwealth's scheme, the Queensland scheme relies on criminal sanctions rather than conciliation methods as a method of enforcement. The Queensland scheme also differs in that if the individual re-offends, any convictions previously considered spent will be revived. Under the Commonwealth scheme, once the rehabilitation period has expired, the ''spent' status of the offence can not be revoked by a subsequent conviction.

New South Wales

The NSW Criminal Records Act 1991 allows for a conviction of six months or less to become spent after a ten year conviction-free period (three years for juvenile offences). Convictions for certain serious offences are not protected. The penalties provisions of the Act for unlawful disclosure of spent conviction information are dealt with summarily before a Local Court by a magistrate sitting alone. Similar to the provisions under the Queensland scheme, a person in breach of the NSW legislation is guilty of an offence.

Western Australia

The Western Australian Parliament passed a spent conviction law in 1988 but it did not come into operation until 1 July 1992. The WA Spent Conviction Act 1988 adopts a different approach to that of the Commonwealth and Queensland legislation in so far as it gives offenders who have not been re-convicted for a prescribed period the right to apply for an order declaring a conviction to be spent. In the case of ''serious' offenders the application has to be made to a judge; in the case of other ''lesser' offences it is to the Commissioner of Police. The legislation allows for exclusions from the scheme to be prescribed by regulation.

Unlike the Commonwealth scheme, which relies on a framework of protecting against ''improper use and disclosure which results in harm', the Western Australian scheme is based on an anti-discrimination framework. The ''use and disclosure' approach was adopted under the Commonwealth scheme as it is more consistent with existing privacy protection mechanisms under the Federal Privacy Act.

Northern Territory

The NT introduced the Criminal Records (Spent Convictions) Act 1992. Like the New South Wales scheme, the NT scheme does not apply to convictions where a sentence of more than six months was imposed. The NT scheme also has similarities to the Queensland and NSW schemes in that it relies on criminal sanctions as a method of enforcement.

Other States and Territories

South Australia, Tasmania and Victoria all considered introducing legislation but decided against implementing such a scheme and there are no immediate proposals to reopen discussions. The ACT has no spent convictions legislation

Jeanette Knowler is a Policy Officer in the Office of the Australian Privacy Commissioner. This paper was first presented at the Privacy Issues Forum, Auckland, in May 1994.