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CRIMINAL RECORDS BILL 1991
NEW SOUTH WALES
EXPLANATORY NOTE
(This Explanatory Note relates to this Bill as introduced into Parliament)
The object of this Bill is to implement a scheme to limit the effect of a person's
conviction for a relatively minor offence if the person completes a period of
crime-free behaviour. On completion of the period, the conviction is to be regarded
as spent and, subject to some exceptions, is not to form part of the person's criminal
history.
The Bill also provides or the effect of the quashing of a conviction and the
pardoning of an offence.
PART 1--PRELIMINARY
Clause 1 specifies the short title of the proposed Act.
Clause 2 provides for the proposed Act to commence on a day or days to be
proclaimed.
Clause 3 states the objects of the proposed Act.
Clause 4 contains definitions for the purposes of the proposed Act.
Clause 5 provides that certain findings are to be treated as convictions for the
purposes of the proposed Act. They are:
* a finding that an offence has been proved without proceeding to a conviction
* a finding that an offence has been proved and the discharging of the offender
conditionally on entering into a recognizance to be of good behaviour for a
specified period or on other specified conditions
* in the case of the Children's Court, an order under section 33 of the Children
(Criminal Proceedings) Act 1987, other than an order dismissing a charge
Criminal Records 1991
Clause 6 requires the provisions of the proposed Act to be construed as including
references to offences, convictions and courts other than those of New South Wales
in order that those provisions may apply to convictions for offences against laws
other than New South Wales laws. The clause also requires the provisions of the
proposed Act to be construed so as to apply to convictions imposed before the date
of commencement of clause 7 of the proposed Act (which specifies the convictions
which are capable of being spent).
PART 2--SPENT CONVICTIONS
Clause 7 specifies that all convictions, whether for offences against New South
Wales laws or laws other than New South Wales laws and whether imposed before,
on or after the date of commencement of the clause, are capable of becoming spent
under the proposed Act, subject to certain exceptions. The exceptions are:
* convictions for which a prison sentence of more than 6 months has been
imposed
* convictions for certain sexual offences
* convictions imposed against bodies corporate
* convictions prescribed by the regulations
Clause 8 specifies the circumstances in which a conviction, finding or order is to
be regarded as being spent. They are:
* a conviction is spent on completion of a specified period of crime-free
behaviour (called the "crime-free period")
* a finding that an offence has been proved without proceeding to a conviction
is spent immediately after the finding is made
* an order of the Children's Court dismissing a charge and administering a
caution is spent immediately after the caution is administered
* a finding that an offence has been proved and the discharging of the offender
conditionally on entering into a recognizance to be of good behaviour for a
specified period or on other specified conditions or the releasing of the
offender on probation is spent on satisfactory completion of the period or
satisfactory compliance with the conditions, or both
* a conviction for an offence that ceases to be an offence is spent when the
offence ceases, if the offence is prescribed by the regulations for the purposes
of the provision
Clause 9 specifies the crimefree period for convictions of courts (other than the
Children's Court). The period is any period of not less than 10 consecutive years after
the date of the conviction during which the convicted person must not have been
convicted of an offence punishable by imprisonment or been in prison because of a
conviction for any offence,
Clause 10 specifies the crimefree period for orders of the Children's Court. The
period is any period of not less than 3 consecutive years after the date of the order
during which the person concerned must not have been subject to a control
(custodial) order of the Children's Court, convicted of an offence punishable by
imprisonment or been in prison because of a conviction for any offence.
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PART 3--CONSEQUENCES OF A CONVICTION BECOMING SPENT
Division 1--General
Clause 12 sets out the consequences of a conviction becoming spent. They are:
* the offender is not required to disclose the spent conviction to another person
* a question concerning the offender's criminal history is to be taken to refer only
to any convictions which are not spent
* statutory provisions relating to convictions or to a person's character or fitness
are to be taken to apply only to any convictions which are not spent, except,
in the case of existing statutory provisions, to the extent to which the
regulations otherwise provide
Clause 13 makes it an offence for a person who has access to records of
convictions kept by or on behalf of a public authority to disclose to another person,
without lawful authority, any information concerning a spent conviction. The clause
also provides that it is not an offence:
* for information to be made available by the Criminal Records Unit of the
Police Service in certain circumstances
* for an archive or library to make material available in accordance with its
normal procedures
* for information to be exchanged between law enforcement agencies (which are
listed in the clause)
Clause 14 makes it an offence for a person to obtain, or to attempt to obtain, by
fraudulent or dishonest means, information concerning a spent conviction from
records kept by or on behalf of a public authority.
Division 2--Exclusions
Clause 15 provides that clause 12 does not apply in relation to:
* persons seeking appointment to judicial office or in areas such as law
enforcement, teaching or child care
* persons seeking employment in fire fighting or fire prevention who have been
convicted of arson or attempted arson
Clause 16 provides that clause 12 does not apply to proceedings before a court
or the making of a decision by a court However, a court before which evidence of
a spent conviction is admitted is required, in appropriate circumstances, to take such
steps as are reasonably available to it to prevent or minimise publication of that
evidence
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Criminal Records 1991
Clause 17 provides that the proposed Act does not affect section 30 of the Local
Government Act 1919 which sets out the circumstances in which a person is
disqualified for civic office.
Other appropriate exclusions will be able to be effected by means of regulations
to be made under the proposed Act.
PART 4--QUASHED CONVICTIONS AND PARDONS
Clause 18 sets out the circumstances in which a conviction is taken to be quashed.
Clause 19 specifies that the provisions of the proposed Act in Division 1 of Part
3 which set out the consequences of a conviction becoming spent apply equally to
a conviction which is quashed and to a pardon.
PART 5--MISCELLANEOUS
Clause 20 provides that the proposed Act binds the Crown.
Clause 21 provides that the proposed Act does not authorise a person to disclose
a conviction or to take a conviction into account if to do so would contravene any
other law.
Clause 22 provides that nothing in the proposed Act affects anything lawfully
done before a conviction is spent or quashed or a pardon is granted
Clause 23 provides that the proposed Act does not authorise the destruction of
a record of a public authority relating to a spent or quashed conviction or a pardon.
Clause 24 provides that proceedings for offences are to be dealt with summarily
before a Local Court.
Clause 25 enables the Governor-in-Council to make regulations for the purposes
of the proposed Act.
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