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spent convictions, offender registers and evidence
This page considers Australian spent conviction (aka expunged
records) and offender registration regimes. It also considers
privacy aspects of particular court hears, notably sexual
assault trials.
It covers -
It
is complemented by a note on vetting
& identity verification services, along with comments
about 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, Tasmania and South Australia. In New South Wales,
Queensland, the Northern Territory and Western Australia
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 the NSW Criminal Records
Act 1991, WA Spent Convictions Act 1992,
Qld Criminal Law (Rehabilitation of Offenders) Act
1986 and the NT Criminal Records (Spent Convictions)
Act 2002. 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
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).
evidence
Provisions in the state/territory criminal codes and evidence
legislation provide protection for particular types of
personal information in legal proceedings.
One example is protection for a range of verbal and written
communications about/during sexual assault counselling
(potentially including what is said during counselling
and documents such as letters, medical notes and official
forms) and an individual's history prior to the alleged
assault.
Some jurisdictions specify that particular documents are
exempt from protection, typically documents that might
conceivably fall within some of the broadly worded definitions
of communications protected by law but that would have
been created as potential evidence. Examples are records
created by a medical practitioner during a physical examination
of a complainant or documents created for the purposes
of legal proceedings. In most jurisdictions protection
from disclosure will be lost where counselling communications
provide evidence of serious misconduct such as perjury
or a criminal offence.
South Australia, Tasmania and the ACT provide protection
for counselling communications made in a context giving
rise to a duty of confidentiality or reasonable expectation
of confidentiality. The communications must directly relate
to assessment or treatment relating to harm suffered as
a result of the offences. In the other jurisdictions protection
can extend to communications made prior to the alleged
assault (not necessarily limited to communications made
specifically in connection with the alleged offence).
In Tasmania the complainant's consent is required for
disclosure of sexual assault counselling files.
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