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criminal
convictions
This page considers Australian spent conviction (aka expunged
records) and offender registration regimes.
It covers -
It
is complemented by notes on vetting
& identity verification services, on overseas offender
registers and resume fraud.
introduction
The state/territory spent conviction regimes are broadly
similar to the Commonwealth scheme outlined here,
providing for expungement of many juvenile convictions
and offences punished with under six months prison sentences
(subject to a crime-free period).
There is no specific spent convictions legislation in
Victoria and South Australia. In New South Wales, Queensland,
the Northern Territory, Tasmania and Western Australia
the legislation provides that most offenders do not need
to disclose the conviction - and the public records are
sealed - after a specific period of time. Some discrimination
is also prohibited.
The major enactments are -
-
Spent Convictions Act 2000 (ACT) - here
-
Criminal Records Act 1991 (NSW) - here
-
Criminal Records (Spent Convictions) Act (NT)
- here
-
Criminal Law (Rehabilitation of Offenders) Act 1986
(Qld) - here
-
Annulled Convictions Act 2003
(Tas) - here
-
Spent Convictions Act 1988
(WA) - here
The
corresponding New Zealand legislation is the Criminal
Records (Clean Slate) Act 2004. In South Australia
convictions for certain offences are apparently transferred
to an 'inactive file' after five to ten years.
Exclusions reflect major crimes, notably those involving
children, with law reform bodies grappling with concerns
regarding employment of sex offenders (evident in suggestions
for strengthening of the NSW Child Protection (Prohibited
Employment) Act 1998 and proposals in Victoria for
photo ID and registration under that state's Working
With Children law).
The federal Human Rights & Equal Opportunity Commissioner
thus commented in 2005 that
A
basic principle of anti-discrimination is to enable
an employer to refuse to employ someone if their criminal
record is genuinely relevant to the essential requirements
of the job. However, if a person's criminal record doesn't
impact on the inherent requirements of the job, and
that person is the best candidate for the job in every
other way, these laws are designed to protect a person
from being denied equal opportunity because of their
criminal record
offender registration
Australian and overseas sex offender regimes (including
the contentious US 'Megans Law' schemes) are discussed
in more detail elsewhere
on this site.
Issues with spent convictions are explored in the
Australian Law Reform Commission's 1987 Spent Convictions
report,
the 2004 AIC report
by Joe Graffam, Alison Shinkfield, Barbara Lavelle &
Lesley Hardcastle on Attitudes of employers towards
employing ex-prisoners and ex-offenders, Nigel Waters'
paper (PDF)
on Implications for Privacy Laws noted earlier
in this profile and the 2005 Human Rights & Equal
Opportunity Commission On the Record: Guidelines for
the prevention of discrimination in employment on the
basis of criminal record document
(following the HREOC 2004 discussion paper on Discrimination
in Employment on the basis of Criminal Record).
studies
Academic perspectives are provided in 'Do Not Pass Go:
The impact of criminal record checks on employment in
Australia' by Bronwyn Naylor in 30(4) Alternative
Law Journal (2005) 174-179;
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