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Case Citation:

A v Private Health Service Provider [2010] PrivCmrA 2

Subject Heading:

Spent conviction information improperly taken into account

Law:

Sections 85ZV and 85ZW(b)(ii) in Part VIIC Division 3 of the Crimes Act 1914 (Cth)

Facts:

The complainant was employed by an Australian Government agency.  The agency engaged the services of a health service provider to assess the complainant's suitability for continuing employment with the agency.  

The agency provided the health service provider with information about the complainant, which included the complainant's old criminal conviction information.  The health service provider's report about the complainant took this old conviction information into account.  

The complainant alleged their conviction information was spent under the Crimes Act and therefore was inappropriately used.

Issues:

The spent convictions scheme in Part VIIC of the Crimes Act protects people against discrimination based on old minor convictions.  The scheme allows a person to disregard some old convictions and provides protection against unauthorised use and disclosure of this information. 

Under section 85ZW(b)(ii) of the Crimes Act, anyone who knows (or could reasonably be expected to know) an individual's conviction is spent, shall not take account of the fact that the person was charged with, or convicted of, the offence, unless one of the exceptions in Division 6 applies.

Outcome:

The Privacy Commissioner investigated the matter under section 85ZZC of the Crimes Act.

The Commissioner took the view that the information was protected under the Commonwealth spent convictions scheme because it was spent.

The Commissioner also took the view that ‘taking into account' includes but is not limited to:

• asking questions about spent convictions at interviews
• seeking information on such convictions when performing criminal history checks or
• using information about spent convictions.

In the Commissioner's view, the health service provider's report to the agency took into account the complainant's spent conviction information in contravention of section 85ZW(b)(ii) of the Crimes Act.

As a result of the complaint, the service provider took action to increase awareness of, and compliance with, the spent convictions scheme throughout its organisation and in the health sector in general. 

The service provider explained that it had distributed information about the scheme to its employees, arranged for information about the scheme to be included in a publication read by a large number of health service providers and forwarded information about the scheme to the relevant professional body.

The complainant was satisfied with the service provider's actions.

Therefore, the Commissioner closed the investigation under section 85ZZC(2)(c)(i) of the Crimes Act on the basis that the service provider had adequately dealt with the matter.

Office of the Privacy Commissioner
May 2010