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Model Spent Convictions Bill

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Model Spent Convictions Bill

Australian Human Rights Commission
Submission to the Standing Committee of Attorneys-General

5 February 2009

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Table of Contents

1 Introduction

  1. The Australian Human Rights Commission (the Commission) makes this
    submission to the Standing Committee of Attorneys-General in its Inquiry into
    the model Spent Convictions Bill 2008.
  2. The Commission strongly supports the introduction of a uniform spent
    convictions scheme. The introduction and implementation of this uniform scheme
    in all jurisdictions should be a matter of national priority.
  3. As stated by the Australian Law Reform Commission in its report entitled Spent
    Convictions    :[1]
...there
is a strong case for doing something about the problems faced by former
offenders. If nothing were done, society would be needlessly depriving itself of
the talents and energies of people in whose positive development it has a
distinct interest.
  1. Over the last four years, complaints to the Commission regarding criminal
    record discrimination have almost tripled. In 2007-08, 73 criminal record
    complaints were received which represents a 35 per cent increase in comparison
    with the previous year.[2]
  2. In 2005 the Commission undertook a research and consultation project on
    discrimination on the ground of criminal record. The Commission produced On
    the Record: Guidelines for the prevention of discrimination in employment on the
    basis of criminal record.[3]     This
    publication provides practical guidance on how to prevent criminal record
    discrimination in the workplace.
  3. A number of submissions to the Commission’s project highlighted the
    importance of uniform spent conviction laws in Australia, particularly in light
    of the lack of anti discrimination legislation in the area. The submissions
    indicated that the jurisdictional differences in current spent conviction laws
    have caused confusion, misunderstanding and errors in their application.
  4. The Commission welcomes the opportunity to comment on the draft model Spent
    Convictions Bill, and makes the following submissions:

    • The model Spent Convictions Bill should apply to all convictions. The
      Commission considers the eligibility requirements for the scheme to be unduly
      restrictive.
    • The exemptions to the scheme are too widely cast. If these exemptions are
      retained in the Bill they should be balanced by the introduction of protections
      at a federal level from unlawful criminal record discrimination.
    • Clause 11(4)(d) contains no enforcement mechanism or grievance procedure. A
      person who is refused employment because of a spent conviction in breach of
      clause 11(4)(d) has no remedy under the draft Bill.
    • The implementation of the model Spent Convictions Bill should be accompanied
      by a comprehensive community education strategy.

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2 Eligibility for the
spent convictions scheme

  1. The Explanatory Note to the Bill states that ‘some offences are too
    serious to become spent.’[4] Under the Bill, whether an offence is capable of becoming spent depends on the
    sentence imposed in the particular case. The Bill proposes that the following
    convictions are capable of becoming
    spent:[5]

    • a conviction where a person, if tried as an adult, was sentenced to 12
      months imprisonment or less; or
    • a conviction where a person, if tried as a juvenile, was sentenced to 24
      months imprisonment or less.
  2. Difficulties arise in excluding convictions on the basis of the sentence
    imposed. Sentences for the same crime committed in apparently similar
    circumstances might vary from judge to judge within an appropriate range, or
    from State to State. Accordingly, any particular sentence selected as a cut off
    point could produce substantially different results. For example, sentencing
    policy under Commonwealth law stresses heavy fines rather than prison sentences
    for certain kinds of serious
    offences.[6]
  3. The Commission submits that the model spent convictions scheme should apply
    to all convictions. The scheme should not exclude convictions on the basis of
    the sentence imposed, or on any other basis. All convictions should be capable of becoming spent.[7] Provision can then be made for more serious offences by providing that serious
    offences can only be spent if a court so orders (in accordance with the
    procedure set out at clause 9). The issue of the appropriate mechanism for
    dealing with serious offences is dealt with below.

Recommendation
1: That the model Spent Convictions Bill should apply to all
convictions.

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3 Mechanism for dealing
with serious offences

  1. The Explanatory Note invites comment on whether a separate mechanism should
    be included in the Bill for dealing with more serious offences (namely, sex
    offences).[8]
  2. The Bill proposes two alternatives to deal with sex offences. The first is
    to include clause 5(2)(a) which provides that sex offences cannot become spent
    under the Act. The second is to allow sex offences to become spent in the
    following limited circumstances.[9] After the elapse of the qualifying period of good
    behaviour,[10] the offender would be
    eligible to apply for a court order for the conviction to become spent. The
    application would be notified to the Attorney-General and the Commissioner for
    Police, in case they wish to make a
    submission.[11] The making of the
    order is at the court’s discretion and that discretion will be exercised
    having regard to:[12]

    • the nature, circumstances and seriousness of the offence;
    • the length and kind of sentence imposed for the conviction;
    • the length of time since conviction,
    • all the circumstances of the applicant (including whether the applicant
      appears to have rehabilitated);
    • whether the conviction prevents or may prevent the applicant engaging in a
      particular trade, profession or in a particular employment; and
    • any public interest to be served in not making an order.
  3. If the court rejects the application, the person cannot reapply for another
    two years.[13]
  4. The Commission accepts that special attention has to be given to serious
    offences in designing any spent convictions scheme. Serious offences can be
    defined either by reference to the category of the offence, or on the basis of
    the sentence imposed. It is important to recognise that there are difficulties
    involved in making the distinction on either of these bases.
  5. To exclude a conviction on the basis of the category of the offence could be
    unfair. A particular category of offence covers a range of behaviour. For
    example, it is possible that the term ‘sex offence’ could include
    cases of consensual sex between 15 year olds which constitutes the offence of
    carnal knowledge. The Commission would query whether this offence should never
    be permitted to be spent.
  6. Differences on the basis of the sentence imposed proceed on a more rational
    basis, but difficulties remain. As set out above, any particular sentence
    selected as a cut off point could produce substantially different results.
  7. In recognition of these difficulties, and the possibility of arbitrary and
    unfair outcomes, the Commission recommends that provision be made for serious
    offences (either by reference to the category of the offence, or by reference to
    the length of the sentence), by providing that such offences can only be spent
    if a court so orders (in accordance with the procedure set out at clause 9).
    This procedure allows for concerns about serious offences to be accommodated
    flexibly, on a case by case basis. It allows for an assessment of the
    circumstances of the conviction and the circumstances of the applicant when
    deciding whether a conviction should be spent.

Recommendation 2:
Provision be made for serious offences by providing that serious offences can
only be spent if a court so orders (in accordance with the procedure set out at
clause 9).

  1. The Commission further notes that if serious offences are defined by
    reference to the category of the offence, care should be taken in defining the
    offence. Significant difficulties arise in leaving the interpretation of these
    categories of offences to employers or other decision makers. For example, the Accountability Principles 1998 made under the Aged Care Act 1997 (Cth) provide that an aged care provider must not allow a person to become a
    staff member, or to continue as a staff member, if the person has
    been:[14]

    • convicted of murder or sexual assault; or
    • convicted of, and sentenced to imprisonment for, any other form of assault.
  2. The term ‘sexual assault’ is not defined in the legislation.
  3. Complaints made to the Commission have highlighted the difficulties faced by
    employers in interpreting the scope of the term ‘sexual assault’.
    For example, it is not clear whether the offence of carnal knowledge is a sexual
    assault for the purposes of the Accountability Principles 1998. Employers
    are placed in the difficult situation of balancing their obligations under the Accountability Principles 1998 with their obligation not to discriminate
    against employees on the basis of irrelevant criminal record.

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4 Exemptions
to the spent convictions scheme

  1. The Commission acknowledges the need for exemptions from the spent
    convictions scheme in the interests of community safety and the effective
    administration of justice. However, the Commission is concerned that the
    exemptions to the draft Bill are too widely cast.
  2. In relation to some exemptions, this concern could be cured by more careful
    drafting. For example, clause 14(1) provides that ‘sections 11 and 12 do
    not apply to the performance of a function or the exercise of a power by ... a
    justice agency’. The Explanatory Note states that the purpose of this
    exemption is to allow for the investigation and prosecution of offences.
    ‘It is considered that a person’s full record should be available
    for use in criminal investigation processes, for the protection of the
    public.’[15]
  3. However, as presently drafted clause 14(1) allows for the disclosure of
    spent convictions by justice agencies in the performance of all of their
    functions. It is not limited to the investigation or prosecution of offences. It
    suggests, for example, that police would be able to disclose spent convictions
    in responding to requests for criminal record checks.

Recommendation 3: That clause 14(1) be amended as follows
‘sections 11 and 12 do not apply to the performance of a function or the
exercise of a power by a justice agency in connection with the investigation or
prosecution of an offence.’

  1. The Commission is also concerned about the scope of the exemption at clause
    14(6) of the Bill. Clause 14(6) provides a very broad exemption to the spent
    convictions scheme for, amongst other things:

    • a person seeking work or any other activity that directly involves the care
      supervision or instruction of children, aged persons, or persons with a
      disability, illness or impairment; or
    • a person seeking registration or enrolment, or a licence or accreditation,
      in or in relation to an occupation, profession or position that requires the
      person, pursuant to statute, to be a fit and proper person or to be a person of
      good character.
  2. The Commission is concerned that this exemption operates regardless of the
    relevance of the spent conviction to the inherent requirements of the particular
    employment.
  3. The Commission is aware from the complaints it receives that unsatisfactory
    outcomes result from employers taking into account irrelevant criminal records.
    The Commission provides a case study below.

    Employment as a youth
    worker: The complainant was employed as a locum caseworker for a State
    Government Department. He disclosed his criminal convictions and provided
    information regarding the circumstances surrounding his convictions. He states
    that he then applied for a permanent position. He was told that due to his
    criminal history, a drug possession (marijuana) charge 16 years ago, he would
    not be appointed to the position and could no longer have one-on-one contact
    with clients. The complainant’s employment was then terminated.

  4. The Commission recognises there are significant difficulties in including a
    relevance test within the terms of the clause 14(6) exemption. This is because
    it is difficult to see who would make the assessment of whether the disclosure
    of the spent conviction was relevant to the person’s ability to perform
    the inherent requirements of the job.
  5. In the circumstances, the Commission submits that the inclusion of this
    broad exemption within the model spent convictions scheme must be balanced by an
    amendment to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act) to make unlawful discrimination on the ground of criminal
    record. Section 3 of the HREOC Act would need to be amended to include criminal
    record within the definition of ‘unlawful discrimination’. This
    amendment would provide individuals with access to the regime for resolving
    complaints of unlawful discrimination at section 46P-PO of the HREOC Act before
    the Commission, the Federal Court and the Federal Magistrates Court.
  6. Further, having Federal Court jurisprudence on the circumstances in which a
    criminal record is relevant to the person’s ability to perform the
    inherent requirements of the job would provide greater certainty for
    employers.
  7. At present, the Commission may inquire into complaints alleging
    discrimination in employment on the ground of criminal record under a different
    regime to that applying to cases of ‘unlawful discrimination’ under
    the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act
    1984     (Cth), the Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004 (Cth).[16] The Commission may find
    that certain conduct is discriminatory, if the complaint is unable to be
    conciliated. However, the Commission’s actions are limited to preparing a
    report with recommendations to the Attorney-General for tabling in
    Parliament.[17] The Commission is
    not empowered to enforce its recommendations and a complainant does not have
    access to the Federal Court or the Federal Magistrates Court.
  8. The Commission submits that it is essential that criminal record
    discrimination is made unlawful at the federal level. This will ensure that
    employers with access to spent convictions make decisions based on the relevance
    of the conviction to the person’s ability to perform the inherent
    requirements of the particular job.
  9. Protection at a federal level is particularly important in light of the
    absence of comprehensive protection at a State and Territory level. Only
    Tasmania and the Northern Territory have laws that specifically prohibit
    discrimination on the ground of criminal
    record.[18] Western Australia and
    the ACT have legislation that prohibits discrimination on the ground of spent
    convictions.[19]

Recommendation
4: That the inclusion of s 14(6) be balanced by an amendment to the HREOC Act to
make unlawful discrimination on the ground of criminal record.

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5 Clause 11(4)(d) Effect
of a conviction becoming spent

  1. Clause 11(4)(d) provides as follows:

If a conviction of a person
is spent – ...



(d) the spent conviction, or the non-disclosure of the spent 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.

  1. The Commission has two concerns in relation to this provision.
  2. First, the Commission submits that the scope of clause 11(4)(d) is unclear.
    The Commission submits that the clause should be amended to make clear that it
    includes refusing the person employment, dismissing the person from employment,
    or subjecting the person to any other detriment.

Recommendation
5: That clause 11(4)(d) be amended to include refusing the person employment,
dismissing the person from employment, or subjecting the person to any other
detriment.

  1. Second, clause 11(4)(d) is a stand alone provision that contains no
    enforcement mechanism. A person aggrieved by a breach of clause 11(4)(d) has no
    grievance procedure or process to provide redress. The provision appears to
    acknowledge that a person should not be discriminated against on the basis of a
    spent conviction, but it provides no remedy when this occurs.
  2. The Commission submits that a person that has, for example, been refused
    employment on the basis of a spent conviction in breach of clause 11(4)(d) must
    have access to a complaint mechanism and a remedy, including compensation. The
    model Bill could provide its own complaint mechanism for breaches of clause
    11(4)(d) as part of the uniform spent conviction scheme or it could provide for
    complaints to go to State anti discrimination tribunals.
  3. Alternatively, the HREOC Act could be amended to make unlawful
    discrimination on the ground of criminal record (consistently with Recommendation 4). As set out above, this would provide individuals who
    have been discriminated against on the basis of irrelevant criminal record with
    access to the regime for resolving complaints of unlawful discrimination at
    section 46P-PO of the HREOC Act before the Commission, the Federal Court and the
    Federal Magistrates Court.

Recommendation 6: That a complaint
mechanism which provides for an enforceable remedy, including compensation, be
introduced for breaches of clause 11(4)(d).

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6 Education
strategy

  1. The submissions made to the Commission’s inquiry into criminal record
    discrimination highlighted a high level of confusion and misunderstanding in the
    community about spent conviction laws in Australia. Moreover, complaints made to
    the Commission of criminal record discrimination have revealed that employers
    and people with a criminal record have difficulty understanding and implementing
    the different laws relating to spent convictions.
  2. Unification of spent conviction laws will address some of the difficulties
    that people currently face.
  3. The Commission submits that the implementation of the model Spent
    Convictions Bill should be accompanied by a comprehensive community education
    strategy. This education strategy should target employers, record keepers,
    decision makers and people with a criminal record to assist them to understand
    their rights and obligations under a spent convictions
    scheme.

Recommendation 7: The Commission recommends that the
implementation of the model Spent Convictions Bill should be accompanied by a
comprehensive community education strategy aimed at employers, record keepers,
decision makers and people with a criminal record to assist them to understand
their rights and obligations under a spent convictions scheme.

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7 Appendix -
Recommendations

Recommendation 1: That the model Spent Convictions Bill should apply to
all convictions.

Recommendation 2: That provision be made for serious offences by providing
that serious offences can only be spent if a court so orders (in accordance with
the procedure set out at clause 9).

Recommendation 3: That clause 14(1) be amended as follows ‘sections
11 and 12 do not apply to the performance of a function or the exercise of a
power by a justice agency in connection with the investigation or prosecution of
an offence.’

Recommendation 4: That the inclusion of s 14(6) be balanced by an
amendment to the HREOC Act to make unlawful discrimination on the ground of
criminal record.

Recommendation 5: That clause 11(4)(d) be amended to include refusing the
person employment, dismissing the person from employment, or subjecting the
person to any other detriment.

Recommendation 6: That a complaint mechanism which provides for an
enforceable remedy, including compensation, be introduced for breaches of clause
11(4)(d). Recommendation

7: That the implementation of the model Spent Convictions
Bill should be accompanied by a comprehensive community education strategy aimed
at employers, record keepers, decision makers and people with a criminal record
to assist them to understand their rights and obligations under a spent
convictions scheme.

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[1] Australian Law Reform
Commission, Spent Convictions, Report No 37, 1987, p
4.

[2] Australian Human Rights
Commission, Annual Report 2007 – 2008, p 58. These complaints are
dealt with under Part II, Division 4 of the Human Rights and Equal
Opportunity Commission Act 1986 (Cth) (HREOC Act) relating to discrimination
in employment.

[3] November, 2005: http://www.humanrights.gov.au/human_rights/criminalrecord/on_the_record/index.html[4] Model Spent Convictions Bill – Draft consultation paper, p
2.

[5] Cl
5(1).

[6] Australian Law Reform
Commission, Spent Convictions, Report No 37, 1987, p
29.

[7] Note the Spent
Convictions Act 1988 (WA) provides that all convictions are capable of
becoming spent, save for a conviction where the penalty imposed is a sentence of
life imprisonment.

[8] Model
Spent Convictions Bill – Draft consultation paper, p
3.

[9] Cl
9.

[10] Cl 7: five consecutive
years for a juvenile offender, 10 consecutive years for an adult
offender.

[11] Schedule 1, Clause
2.

[12] Cl
9(5).

[13] Cl
9(2)(b).

[14] Accountability
Principles 1998, Part 4.

[15] Model Spent Convictions Bill – Draft consultation paper, p
4.

[16] HREOCA Act, ss 31(b),
32(1).

[17] HREOC Act, ss
31(b)(ii), 35(2).

[18] Anti-Discrimination Act 1992 (NT), s 19(q); Anti-Discrimination Act
1998 (Tas), s 16(q).

[19] Spent Convictions Act 1988 (WA); Discrimination Act 1991 (ACT), s
7(1)(o).