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TASMANIA
__________
ANNULLED CONVICTIONS BILL 2003
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
4. Act applies to convictions from other jurisdictions
5. Act binds Crown
PART 2 ANNULMENT OF CONVICTIONS
6. Annulment of minor convictions for good behaviour
7. Dealing with traffic convictions
8. Annulment of convictions for spent offences
9. Effect of annulment
10. Annulled convictions cannot be revived except by order of
court
11. Offences of improper disclosure
12. Other offences
PART 3 MISCELLANEOUS
13. Royal prerogative of mercy not affected
14. Integrity of official criminal records
15. Prior lawful acts not affected
[Bill 35]-III
16. Regulations
17. Provisions of Act that may be amended by order
18. Administration of Act
SCHEDULE 1 NON-EXEMPT APPLICATIONS
2
ANNULLED CONVICTIONS BILL 2003
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to facilitate the rehabilitation of offenders by
providing that in certain circumstances minor
convictions are annulled for nearly all purposes, to
impose restrictions on obtaining and disclosing
information about annulled convictions and to make
similar provision for quashed convictions and
pardons and for related purposes
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
PART 1 PRELIMINARY
Short title
1. This Act may be cited as the Annulled Convictions Act
2003.
Commencement
2. This Act commences on a day to be proclaimed.
[Bill 35] 3
s. 3 No. Annulled Convictions 2003
Interpretation
3. (1) In this Act, unless the contrary intention appears
"adult" means a person who has attained the age of
18 years;
"annulled" means
(a) annulled under section 6 or 8; or
(b) quashed or set aside by a court; or
(c) made the subject of a free or conditional
pardon;
"annulled conviction" means a conviction that has
been annulled;
"conviction" means a conviction recorded against a
person for an offence, whether on indictment
or summarily or as a result of the acceptance
of an infringement notice, and whether before
or after the commencement of this Act;
"imprisonment" includes detention pursuant to a
detention order made under the Youth Justice
Act 1997;
"Justice Agency" means any of the following:
(a) the Australian Federal Police;
(b) the police force or service of a State;
(c) the Australian Crime Commission
established by section 7 of the
Australian Crime Commission Act 2002
of the Commonwealth;
(d) the CrimTrac Agency established on 1
July 2000 as an Executive Agency by the
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2003 Annulled Convictions No. s. 3
Governor-General of the Commonwealth
under section 65 of the Public Service
Act 1999 of the Commonwealth;
(e) the Australian Customs Service
established by section 4 of the Customs
Administration Act 1985 of the
Commonwealth;
(f) the Attorney-General for the
Commonwealth or a State;
(g) the Director of Public Prosecutions for
the Commonwealth or a State;
(h) a person employed in a Government
Department or Agency of the
Commonwealth or a State, or in a
council, and whose primary duties
include the prosecution of offences or
assisting with the prosecution of
offences;
(i) the Director of Corrective Services and
the equivalent entity in another State;
(j) the Parole Board and the equivalent
entity in another State;
(k) the Registrar or administrator of a
Commonwealth or State court;
(l) the Secretary of the responsible
Department in relation to the Youth
Justice Act 1997 and any entity that is
responsible for the administration of
discrete youth justice legislation in
another State;
(m) a prescribed body or person;
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s. 3 No. Annulled Convictions 2003
"minor conviction" means any conviction other
than
(a) a conviction for which a sentence of
imprisonment of more than 6 months is
imposed; or
(b) a conviction for a sexual offence; or
(c) a prescribed conviction;
"official criminal record" means a record,
containing information about the outcome of
criminal proceedings, kept by
(a) a court of this State; or
(b) a Government department or State
authority within the meaning of the
State Service Act 2000; or
(c) a council;
"Parole Board" means the board established by
section 62 of the Corrections Act 1997;
"person" means a natural person;
"sentence of imprisonment" includes
(a) any wholly suspended sentence of
imprisonment; and
(b) any suspended part of a sentence of
imprisonment;
"sexual offence" means
(a) an offence under section 124, 125, 125A,
125B, 126, 127, 127A, 128, 129, 133, 185
or 186 of the Criminal Code; or
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2003 Annulled Convictions No. s. 3
(b) an offence under section 122 or 123 of
the Criminal Code as in force
immediately before 14 May 1997; or
(c) an offence under section 298 or 299 of
the Criminal Code in respect of an
offence referred to in paragraph (a) or
(b); or
(d) an offence under section 8(1A)(a) or
35(3) of the Police Offences Act 1935; or
(e) an offence under Part 8 of the
Classification (Publications, Films and
Computer Games) Enforcement Act 1995
in respect of a child abuse product,
within the meaning of that Part;
"State" includes Territory;
"youth" means a person who has not attained the
age of 18 years.
(2) For the purposes of this Act, where a court finds
a person guilty of an offence but does not proceed to record
a conviction, the finding is to be regarded as a conviction.
(3) In this Act, a reference to an annulled conviction
includes a reference to
(a) the charge to which the conviction related; and
(b) any action taken regarding a breach of prison
discipline committed during a sentence of
imprisonment imposed in relation to the
conviction.
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Act applies to convictions from other jurisdictions
4. (1) This Act applies not only to convictions for offences
against the laws of Tasmania but also to convictions for
offences against the laws of the other States, the laws of
the Commonwealth and the laws of other countries.
(2) In their application to convictions for offences
against the laws of other jurisdictions, the provisions of
this Act may be construed with such changes as may be
necessary to enable the provisions to apply to those
convictions in the way that corresponds most closely to the
way in which they apply to convictions for offences against
the laws of Tasmania.
Act binds Crown
5. This Act binds the Crown in right of Tasmania and, so
far as the legislative power of Parliament permits, in all
its other capacities.
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2003 Annulled Convictions No. s. 6
PART 2 ANNULMENT OF CONVICTIONS
Annulment of minor convictions for good behaviour
6. (1) If a person with a minor conviction is of good
behaviour for a required period, the conviction is annulled.
(2) The required period is
(a) if the person was an adult on the day on which
the minor conviction was recorded, the 10 year
period commencing on that day; or
(b) if the person was a youth on the day on which
the minor conviction was recorded, the 5 year
period commencing on that day.
(3) The person is taken to be of good behaviour for
the required period if, during that period, he or she is not
convicted of an offence punishable by a term of
imprisonment.
(4) If, during the required period, the person is
convicted of an offence punishable by a term of
imprisonment, the person's minor conviction is still
capable of being annulled under this section but in such a
case the required period in relation to the minor conviction
is taken to be
(a) if subsection (2)(a) applies to the person in
relation to the minor conviction, the 10 year
period commencing on the day on which the
new conviction was recorded; or
(b) if subsection (2)(b) applies to the person in
relation to the minor conviction, the 5 year
period commencing on the day on which the
new conviction was recorded.
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(5) If, by virtue of subsection (4), the period of good
behaviour required to annul the person's minor conviction
is taken to be different to the applicable period specified in
subsection (2), subsection (4) has the same application to
the new required period as it does to the required period
specified in subsection (2).
Dealing with traffic convictions
7. (1) In this section
"non-traffic offence" means an offence other than
a traffic offence;
"traffic offence" means
(a) an offence under the Traffic Act 1925 or
Vehicle and Traffic Act 1999; or
(b) an offence under the Passenger
Transport Act 1997 or Taxi and Luxury
Hire Car Industries Act 1995; or
(c) an offence under Part VII of the Local
Government (Highways) Act 1982; or
(d) an offence under a prescribed enactment
dealing with traffic or with vehicles or
their use; or
(e) a prescribed offence;
"vehicle" means a motor vehicle or trailer within
the meaning of the Vehicle and Traffic Act
1999.
(2) Subject to subsection (3)
(a) a conviction for a traffic offence and any
resultant sentence of imprisonment are to be
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2003 Annulled Convictions No. s. 8
disregarded in calculating, under section 6, the
required period for a conviction for a non-
traffic offence; and
(b) a conviction for a non-traffic offence and any
resultant sentence of imprisonment are to be
disregarded in calculating, under section 6, the
required period for a conviction for a traffic
offence.
(3) A conviction for an offence against any of the
following laws is relevant in calculating, under section 6,
the required period for any conviction (whether for a traffic
offence or non-traffic offence):
(a) section 167A or 167B of the Criminal Code;
(b) section 4, 6 or 14 of the Road Safety (Alcohol
and Drugs) Act 1970;
(c) section 32(1), (2A) or (2B) of the Traffic Act
1925.
Annulment of convictions for spent offences
8. A person's minor conviction for an offence is annulled
if
(a) the offence has ceased by the operation of any
law to be an offence; and
(b) the offence is prescribed as being an offence to
which this section applies.
Effect of annulment
9. (1) If a person's conviction is annulled
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s. 9 No. Annulled Convictions 2003
(a) the person is not required to disclose the
annulled conviction to any other person; and
(b) the annulled conviction is taken not to form
part of the person's official criminal record;
and
(c) a question about the person's criminal history
is taken not to refer to the annulled conviction
but only to convictions, if any, that have not
been annulled; and
(d) in applying a provision of any legislation,
agreement or arrangement to the person
(i) a reference to a conviction, however
expressed, is taken not to refer to the
annulled conviction; and
(ii) a reference to the person's character,
however expressed, is not to be taken as
allowing or requiring anyone to take
account of the annulled conviction; and
(e) the annulled conviction, or the non-disclosure
of the annulled conviction, is not a proper
ground for
(i) refusing the person any appointment,
post, status or privilege; or
(ii) revoking any appointment, status or
privilege held by the person or
dismissing the person from any post.
(2) Subsection (1) does not apply to the proceedings
of a court or to the making of a decision by a court,
including a decision about sentencing, but a court that
receives evidence of an annulled conviction may take such
steps as are reasonably available to it to prevent or restrict
the dissemination of that evidence if the court, having
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2003 Annulled Convictions No. s. 10
regard to the object of this Act, considers it appropriate to
do so in the circumstances.
(3) Subsection (1) does not apply to the proceedings
of the Parole Board or to the making of a decision by the
Parole Board.
(4) Subsection (1) does not apply to
(a) an application for an appointment, post, status
or privilege referred to in Schedule 1; or
(b) an application for registration or enrolment
associated with or required for the gaining of
any such appointment, post, status or
privilege.
Annulled convictions cannot be revived except by
order of court
10. (1) A minor conviction that has been annulled under
section 6 or 8 is not capable of being revived except by
order of a court in accordance with this section.
(2) Any court may order that a minor conviction
annulled under section 6 is revived if the offender is
subsequently convicted on one or more occasions of the
same offence as that to which the annulled conviction
relates and the court is satisfied, having regard to the
nature of the offence and such other matters as the court
considers relevant in the circumstances, that it would be
futile or not in the public interest for the person to
continue to have the benefit of the annulment.
(3) Any court may order that a minor conviction
annulled under section 6 or 8 is revived if the offender is
subsequently convicted of an offence and the court is
satisfied, having regard to the nature of the offence, the
weight it has given to the factors of deterrence and
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s. 11 No. Annulled Convictions 2003
punishment in sentencing the person for the offence and
such other matters as the court considers relevant in the
circumstances, that it would be in the public interest for
the annulled conviction to be revived.
(4) The Supreme Court may order that a minor
conviction annulled under section 6 or 8 is revived if the
offender is subsequently declared to be a dangerous
criminal under section 19 of the Sentencing Act 1997 and
the court is satisfied, having regard to the safety of the
public or any person and such other matters as the court
considers relevant in the circumstances, that the annulled
conviction should be revived.
(5) If an annulled conviction is revived as provided
by this section, this Act applies as if it had never been
annulled.
Offences of improper disclosure
11. (1) A person must not threaten to disclose information
about another person's annulled conviction.
Penalty: Fine not exceeding 50 penalty units.
(2) A person with access to official criminal records
must not, without lawful authority, disclose any
information about another person's annulled conviction
held in those records without the consent of that other
person.
Penalty: Fine not exceeding 50 penalty units.
(3) It is not an offence under subsection (2) for a
Justice Agency in the proper discharge of the Agency's
functions (or for a person who works for a Justice Agency
acting in the course of his or her duty) to release
information about a person's annulled conviction to
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2003 Annulled Convictions No. s. 11
(a) a court; or
(b) another Justice Agency to enable it to
discharge, as the case requires, its legitimate
enforcement, prosecutorial, administrative,
penal, rehabilitative or other functions or to
carry out related research; or
(c) a person or body that, pursuant to section 9(4),
seeks the information for the purpose of
making a determination in respect of
(i) an application for an appointment, post,
status or privilege referred to in
Schedule 1; or
(ii) an application for registration or
enrolment associated with or required
for the gaining of any such appointment,
post, status or privilege; or
(d) a person carrying out research into sentencing,
criminal justice or related matters, whether
for academic, professional or other purposes;
or
(e) the Tasmania Law Reform Institute or a law
reform body of the Commonwealth or another
State; or
(f) a prescribed person.
(4) It is not an offence under subsection (2) for
(a) an archive or library (or a person who works
in an archive or library acting in the course of
his or her duty) to release, in accordance with
its normal procedures, material containing
information about annulled convictions to a
member of the public or to another archive or
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s. 12 No. Annulled Convictions 2003
library if it is material that is normally
available for public use; or
(b) a court (or a registrar, administrator or other
officer of a court acting in the course of his or
her duty) to release, in accordance with the
court's normal procedures, material containing
information about annulled convictions to a
member of the public if it is material that is
normally available for public use.
(5) It is a defence to a charge for an offence against
subsection (2) to show that the defendant acted in good
faith in the honest belief that
(a) he or she had lawful authority to disclose the
information; or
(b) the conviction had not been annulled; or
(c) the convicted person had consented to the
disclosure of the information.
Other offences
12. (1) A person must not fraudulently or dishonestly
obtain, or attempt to obtain, information about another
person's annulled conviction from an official criminal
record.
Penalty: Fine not exceeding 50 penalty units.
(2) A person must not take an annulled conviction
into account for a purpose not authorised by this Act.
Penalty: Fine not exceeding 50 penalty units.
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2003 Annulled Convictions No. s. 13
PART 3 MISCELLANEOUS
Royal prerogative of mercy not affected
13. Nothing in this Act is to be taken as affecting the
Royal prerogative of mercy.
Integrity of official criminal records
14. Nothing in this Act is to be taken as authorising or
requiring any person to destroy, cull or edit any documents
containing criminal records.
Prior lawful acts not affected
15. Nothing in this Act is to be taken as affecting
anything lawfully done before a conviction is annulled.
Regulations
16. (1) The Governor may make regulations for the
purposes of this Act.
(2) Without limiting the generality of subsection (1),
the regulations may provide that this Act, or a specified
provision of it, does not
(a) apply to specified convictions, persons or
circumstances; or
(b) apply to specified official criminal records; or
(c) affect a specified law or specified provisions of
a specified law.
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(3) The regulations may be made so as to apply
differently according to matters, limitations or restrictions,
whether as to time, circumstance or otherwise, specified in
the regulations.
Provisions of Act that may be amended by order
17. (1) The Governor, by order, may amend section 3(1) as
follows:
(a) by inserting, in the definition of "Justice
Agency", a paragraph containing the name of
another Justice Agency or the name of a new
Justice Agency;
(b) by omitting a paragraph from the definition of
"Justice Agency" if the Justice Agency
specified in that paragraph ceases to exist;
(c) by omitting a paragraph from the definition of
"Justice Agency" and substituting a new
(corrected) paragraph if the name of the
Justice Agency specified in that paragraph is
changed.
(2) The Governor, by order, may amend Schedule 1
by doing any one or more of the following:
(a) inserting a new item in any Part of the
Schedule;
(b) omitting an item from any Part of the
Schedule;
(c) omitting an item from any Part of the
Schedule and substituting a new item.
(3) The provisions of sections 47(3), (3A), (4), (5), (6)
and (7) of the Acts Interpretation Act 1931 apply to an
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2003 Annulled Convictions No. s. 18
order under this section as if the order were regulations
within the meaning of that Act.
Administration of Act
18. Until provision is made in relation to this Act by order
under section 4 of the Administrative Arrangements Act
1990
(a) the administration of this Act is assigned to
the Minister for Justice and Industrial
Relations; and
(b) the department responsible to that Minister in
relation to the administration of this Act is the
Department of Justice and Industrial
Relations.
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sch. 1 No. Annulled Convictions 2003
SCHEDULE 1 NON-EXEMPT APPLICATIONS
Section 9(4)
PART 1 JUDICIAL AND LEGAL
1. Judge, master, magistrate, registrar, administrator or
sheriff of a Commonwealth or State court.
2. Solicitor-General for the Commonwealth or a State.
3. Director of Public Prosecutions for the Commonwealth
or a State.
4. A position in a Government Department or Agency of
the Commonwealth or a State, the primary duties of which
position include the prosecution of offences or assisting
with the prosecution of offences.
5. Justice of the Peace for Tasmania.
6. Admission as a legal practitioner under Part 5 of the
Legal Profession Act 1993.
PART 2 ENFORCEMENT
1. Member of the Australian Federal Police, Tasmania
Police or the police force or service of another State.
2. Member or employee of the Australian Crime
Commission established by section 7 of the Australian
Crime Commission Act 2002 of the Commonwealth.
3. Member or employee of the CrimTrac Agency
established on 1 July 2000 as an Executive Agency by the
Governor-General of the Commonwealth under section 65
of the Public Service Act 1999 of the Commonwealth.
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2003 Annulled Convictions No. sch. 1
4. Officer of the Australian Customs Service established
by section 4 of the Customs Administration Act 1985 of the
Commonwealth.
5. Appointment as an authorised officer within the
meaning of the Traffic Act 1925.
PART 3 PRISONS AND PAROLE
1. Director of Corrective Services or an equivalent office in
another State.
2. Corrections or probation officer or an equivalent office
in another State.
3. Member of the Parole Board or member of an
equivalent entity in another State.
PART 4 YOUTH JUSTICE
1. Youth justice worker within the meaning of the Youth
Justice Act 1997.
2. State Service employment in so far as the person
employed performs duties relating to the administration of
the Youth Justice Act 1997.
3. Engagement under a contract for service to perform
duties relating to the administration of the Youth Justice
Act 1997.
PART 5 RACING AND GAMING
1. Member of the Tasmanian Gaming Commission
established by section 123 of the Gaming Control Act 1993.
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sch. 1 No. Annulled Convictions 2003
2. Licence, of any kind, under the Gaming Control Act
1993.
3. Registration as a bookmaker or bookmaker's clerk
under the Racing Regulation Act 1952.
4. Appointment as a stipendiary steward under the
Racing Regulation Act 1952.
PART 6 EDUCATIONAL AND CHILD-RELATED
1. Teacher, teacher's aide or member of the non-teaching
staff of a kindergarten, school, college or other place of
primary or secondary education, whether in this State or
elsewhere in the Commonwealth.
2. Licence or registration under the Child Care Act 2001.
3. Provider, in any capacity, of child-care or child-minding
facilities elsewhere in the Commonwealth.
4. Adoptive or foster parent, whether in this State or
elsewhere in the Commonwealth.
5. Member of a safety house scheme organised by the
Safety House Association of Tasmania.
6. School-crossing patrol officer.
7. Authorised officer within the meaning of the Children,
Young Persons and Their Families Act 1997.
8. State Service employment in so far as the person
employed performs duties relating to the administration of
the Children, Young Persons and Their Families Act 1997.
9. Engagement under a contract for service to perform
duties relating to the administration of the Children,
Young Persons and Their Families Act 1997.
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2003 Annulled Convictions No. sch. 1
PART 7 DRUGS AND POISONS
1. Member of the Tasmanian Poppy Advisory and Control
Board.
2. State service employment in so far as the person
employed assists, or performs duties relating to, the
Tasmanian Poppy Advisory and Control Board.
3. Engagement under a contract for service to perform
work for or on behalf of the Tasmanian Poppy Advisory
and Control Board.
4. Appointment as an analyst for the purposes of the
Poisons Act 1971.
5. Licence of any kind or category under the Poisons Act
1971.
6. Employment, or engagement under a contract of
service, by the holder of a grower's or manufacturer's
licence under Part V of the Poisons Act 1971.
PART 8 OTHER
1. Auditor-General or Deputy Auditor-General for
Tasmania or a member of the Tasmanian Audit
Department.
2. Member of the Tasmania Fire Service or of a fire-
fighting service of another State.
3. Licence, of any kind or category, under the Firearms
Act 1996.
4. Driver licence or ancillary certificate under the Vehicle
and Traffic Act 1999.
Government Printer, Tasmania 23