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Compliance note 1/91: Old conviction information and Commonwealth authorities

Privacy Commissioner, March 1991

The purpose of this Compliance Note is to provide Commonwealth authorities with:

• a background to the new law on old conviction information under the Crimes Act 1914, PartVIIC;
• an explanation of the interaction between the law and the Information Privacy Principles (IPPs) of the Privacy Act;
• guidelines on practices which should be followed by Commonwealth authorities to ensure compliance with Part VIIC of the Crimes Act and the Privacy Act; and
• the role of the Privacy Commissioner in regard to these laws.[1]

Background

The Privacy Act came into effect on 1 January 1989. It lays down a series of Information Privacy Principles (IPPs) dealing with a range of matters including the collection, use and disclosure of personal information.

Part VIIC of the Crimes Act came into effect on 30 June 1990 and deals with aspects of the collection, use and disclosure of old conviction information.

The new law covers situations where an individual has had a conviction quashed or has been pardoned. But its main element is a Spent Convictions Scheme. The aim of the Scheme is to prevent discrimination on the basis of old minor convictions, once a waiting period (usually 10 years) has passed and provided the individual has not reoffended during this period. This Compliance Note deals for the most part with the spent convictions provisions.

What is a quashed conviction?

A quashed conviction is a Commonwealth, Territory, State or foreign conviction which has been set aside by the Court.

What is a pardon?

A pardon means a free and absolute pardon which has been granted to a person because he or she was wrongly convicted of a Commonwealth, Territory, State or foreign offence.

What is a spent conviction?

A spent conviction is a conviction for a Commonwealth, Territory, State or foreign offence for which:

(a) the person has been granted a pardon other than for reasons of wrongful conviction, or

(b) the person was not sentenced to imprisonment or was not sentenced to imprisonment for more than 30 months; and the waiting period has expired.

"Waiting period" means the period of 10 years beginning on the day on which the person was convicted of the offence (5 years for a child offender).

A conviction for a further offence committed during the waiting period will in most cases result in the person automatically losing the right to have the earlier conviction treated as spent until the waiting period for the later conviction has ended. (See Part 8 of this Note - Convictions for further offences).

Note: A statutory or regulatory exclusion may affect the use and disclosure standards of spent conviction information (See Part 5 of this Note - Exclusions from the scheme for further details on exclusions).

Obligations of Commonwealth authorities under Part VIIC of the Crimes Act 1914

The new law imposes obligations on all Commonwealth authorities in dealing with information about an individual's protected old convictions. (See definition of protected old conviction in Part 9of this Note).

The term "Commonwealth authority" refers to all agencies of the Commonwealth government without exception. The limitations and exclusions affecting the meaning of "agency" under the Privacy Act do not apply. Consequently those bodies which enjoy an exclusion from the Privacy Act (e.g. Australian Security Intelligence Organization, National Crime Authority and bodies listed in the exclusion schedules to the Freedom of Information Act) are covered by the provisions of PartVIIC of the Crimes Act 1914).

The legislation affects Commonwealth authorities in the following ways:

• A person with a conviction protected by Part VIIC of the Crimes Act 1914 does not have to disclose that conviction to a Commonwealth authority.
• Commonwealth authorities are prohibited from disclosing protected old conviction information to any Commonwealth or State authority, or any other person or body, without the consent of the person concerned.
• Commonwealth authorities are prohibited from "taking into account" protected old conviction information.

"Taking into account" includes asking questions about protected old convictions at interviews, or seeking information on such convictions when performing criminal history checks.

• A person who believes the standards dealing with disclosure and use of protected old conviction information have been breached by a Commonwealth authority may complain to the Privacy Commissioner. The Commissioner is obliged to investigate complaints and can order a wide range of remedies, including financial compensation or reinstatement for the complainant where a breach is shown.

Obligations of Commonwealth authorities under the Privacy Act – Information Privacy Principles (IPPs) In the case of Commonwealth agencies as defined by the Privacy Act, the IPPs also apply to the handling of protected old conviction information.

Aspects of the following principles have particular relevance:

Collection

IPP 1 requires collection of personal information be directly related to the functions or activities of the collector, and that the collection is by lawful and fair means.

IPP 2 requires that the collector of personal information advise the individual concerned of the purpose for which the information is being collected.

IPP 3 provides that collection of personal information must not unreasonably intrude upon the personal affairs of an individual.

Storage

IPP 4 requires that personal information records be safeguarded against unauthorised access, disclosure or misuse.

Alteration of records

IPP 7 & 8 requires that information held be corrected to ensure the record is accurate, complete and not misleading, and that steps be taken to ensure that information is not used unless it is correct and up to date.

IPP 9 requires that information shall not be used except for a purpose to which the information is relevant.

In respect of protected old convictions, the use and disclosure principles (IPPs 10 and 11) are displaced by the provisions of Part VIIC of the Crimes Act 1914.

Guidelines on handling protected old conviction information

The following guidelines have been issued by the Privacy Commissioner to assist all Commonwealth authorities in complying with Part VIIC of the Crimes Act 1914. In the case of those Commonwealth authorities which are also agencies within the meaning of the Privacy Act (i.e. most Commonwealth authorities), the Privacy Commissioner considers that if these guidelines are adhered to, relevant Information Privacy Principles would also be satisfied.

1. Collection

When collecting information directly from individuals, including interviewing or asking questions (written or oral) in the context of employment, licensing, registration, or the provision of services or benefits, etc., Commonwealth authorities should not ask questions which require the person to disclose protected old convictions. In order to comply with this obligation, an acceptable form of questioning would be to adopt a structured series of questions, for example:

(i) Do you have any convictions which are less than 10 years? and/or Do you have any juvenile convictions which are less than 5 years old? If Yes, provide details.

(ii) Do you have any convictions which are over 10 years old (or 5 years for juvenile convictions), where the sentence imposed was greater than 30 months imprisonment? If Yes, provide details.

A question in broad terms, for example – "Are you the subject of any criminal charge or action before any court, or do you have now or in the past any recorded convictions, findings of guilt or pecuniary penalties against you?" is unacceptable, as the answer may involve disclosure of information on protected old convictions.

2. Criminal history checks - disclosure and use of protected old conviction information

Commonwealth authorities must not take into account information about protected old convictions.

Procedures for recruitment, promotion, licensing, registration, etc, should not include or take into account any information about a pardon, quashed or spent conviction. This should apply even when the person concerned inadvertently discloses information about a protected old conviction.

Commonwealth authorities requiring a criminal history check for potential or existing employees should limit any such check to serious convictions (ie; where the sentence to imprisonment was over 30 months), or convictions less than 10 years old.

Any criminal history checks should be concerned only with ascertaining a criminal history in relation to convictions relevant to the position under consideration, rather than soliciting information on all old convictions.

Where an authority legitimately holds information about protected old convictions, requests from other authorities or persons for old conviction information should not be granted unless the authority holding the information has the consent of the person concerned to disclose that information. A record of any disclosure of old conviction information should be noted on the file of the person concerned.

3. Consent to obtain old conviction information

Current forms which seek a person's permission to authorise disclosure to a Commonwealth authority of details of any convictions or findings of guilt recorded against his/her name held by any police force or any other authority should be modified to ensure:

• the person is informed he/she is not legally required to disclose protected old conviction information;
• the authorities to be contacted for the information are specified (e.g., Australian Federal Police, State Police).

As far as practicable a person's consent must be consent for a specific authority (e.g. the AFP) to disclose specific types of old conviction information, and not merely consent for an authority (e.g.the prospective employing Department) to obtain information on any old conviction from any source.

Commonwealth authorities should ensure that the information collected for the purpose of checking a person's criminal history is up to date as well as relevant. Thus criminal history information collected upon entry to the public service, or in connection with an appointment to a previous position may have become protected old convictions information and should not be used when assessing the suitability of a person for a position which requires a criminal history check. A new consent form should be given to the applicant to complete in these circumstances.

When old conviction information is being assessed by Commonwealth authorities for appointment purposes, the amended PSC "Appointment guidelines" relating to the assessment of a "fit and proper person" should be followed.

When assessing old conviction information in relation to appointment to "Designated Security Assessment Positions (DSAP) and Positions of Trust (PoT)" the guidelines contained in the amended Protective Security Manual to be issued by the Attorney-General's Department should be followed in conjunction with this Compliance Note

4. Storage and security of protected old conviction information

As far as practicable, authorities should take reasonable steps to ensure that information about pardons, quashed and spent convictions is removed and/or kept separately from other types of personal records kept by Commonwealth authorities.

When it is necessary to examine personal files before making a decision, an officer other than the decision maker should first review the files and remove any protected old conviction information before the files can be examined and considered by the decision maker.

Care should be taken by law enforcement agencies, when asked to provide conviction information for the purpose of a criminal history check, to provide only information about convictions which are not protected. This may require such law enforcement agencies to take reasonable steps to maintain separate records containing protected old conviction information.

5. Exclusions from the scheme

Division 6 of Part VIIC of the Crimes Act 1914 and Statutory Rules No 227 of 1990 provide for exclusions from the disclosure and use standards for spent convictions only. There is no exclusion from the application of the legislation for the disclosure and use of information on pardons or quashed convictions.

Some or all Commonwealth authorities have been excluded from the operation of the legislation for certain prescribed purposes in relation to a conviction for a prescribed offence. The exclusion maybe either a complete exclusion, in which case the relevant Commonwealth authority is entitled to ask for, or disclose, information on all "spent" convictions, or a partial exclusion, when only information related to convictions for certain prescribed offences can be asked or disclosed.

When disclosing spent conviction information which is covered by an exclusion, the officer disclosing the information should make a note on the record of the person concerned the relevant provision of the Crimes Act or Crimes Regulations which authorises the disclosure.

6. Question to ask when an exclusion applies

Where there is a complete exclusion, the relevant Commonwealth authority should include in the questions on the form for criminal history checks an explanation of the legal basis for the exclusion.

For example, the explanation accompanying a form for criminal history checks could be worded along the following lines:

"Under Statutory Rules No 227 of 1990, Schedule 4 of the Crimes Regulations, this authority has been granted a complete exclusion from the application of Division 3 of Part VIIC of the Crimes Act 1914 for the purpose of assessing an applicant's suitability for name the relevant designated security assessment position. You are therefore required to provide details of any criminal convictions or findings of guilt recorded against you."

Where a partial exclusion has been granted, a Commonwealth authority should adopt a series of structured questions which would enable the authority to obtain the necessary information without having to ask the individual concerned to disclose information on convictions which may be deemed "spent" and which are not subject to the exclusion. The questions should be prefaced by an explanation of the legal basis for the partial exclusion.

An example of the questions where there is a partial exclusion in respect of a designated offence could be:

Q.1 Do you have any convictions which are less than 10 years old? and/or Do you have any juvenile convictions which are less than 5 years old? If Yes, provide details.

Q.2 Do you have an convictions which are over 10 years old (or 5 years for juvenile convictions),where the sentence imposed was greater than 30 months? If Yes, provide details.

Q.3 Have you ever been convicted of a designated offence? (A `designated offence' means asexual offence or any other offence against the person if the victim of the offence was under18 at the time the offence was committed). If Yes, provide details.

7. Application for exclusion

Part VIIC of the Crimes Act 1914 vests responsibility in the Privacy Commissioner for assessing applications for exclusion and recommending to the Attorney-General whether an exclusion should be granted, and whether there should be any restrictions on the circumstances in which an exclusion would apply. The Privacy Commissioner's first set of recommendations made in May 1990 formed the basis of the exclusions contained in the Crimes Regulations – Statutory Rules No 227 of 1990.

Authorities wishing to apply for an exclusion should address their inquiries to the Privacy Commissioner.

8. Convictions for further offences

8.1 Commonwealth or Territory offences

If before or after the end of the waiting period for the first conviction the person is convicted summarily (before a Magistrate) by a court exercising federal jurisdiction or a court of a Territory,of a Commonwealth or Territory offence, being an offence committed during the waiting period,the court may order that the right of the person to have the earlier conviction treated as "spent"ceases to exist until the waiting period for the later offence has ended.

If before or after the end of the waiting period for the first conviction the person is convicted on indictment (before a Judge) by a court exercising federal jurisdiction or a court of a Territory, of Commonwealth or Territory offence committed during the waiting period, the right of the person to have the earlier conviction treated as "spent" automatically ceases to exist until the waiting period for the later offence has ended.

8.2 State or foreign offence If before or after the end of the waiting period for the first offence a person is convicted, either summarily or on indictment, of a State or foreign offence committed during the waiting period, the right of the person to have the earlier conviction treated as "spent" automatically ceases to exist until the waiting period for the later offence has ended.

9. Meaning of terms used in this compliance note

"Commonwealth Authorities":see definition under section heading OBLIGATIONS OFCOMMONWEALTH AUTHORITIES UNDER PART VIIC OF CRIMES ACT 1914.

"Conviction" means either a summary or indictable conviction and includes a situation where person has been charged with an offence and found guilty, but discharged without conviction, and where a person has not been found guilty of an offence but a court has taken it into account in passing sentence on the person for another offence.

"Commonwealth conviction" means a conviction for an offence against a Commonwealth law.

"State conviction" means a conviction for an offence against a State law, including the laws of the Australian Capital Territory and the Northern Territory.

"Territory conviction" means a conviction for an offence against an Australian Territory law.

Australian Territories include Norfolk Island, Cocos and Keeling Islands, Christmas Island and the Australian Antarctic Territories. "Territory Law" does not include the laws of the Australian Capital Territory or those of the Northern Territory.

"Foreign conviction" means a conviction for an offence against the law of a foreign country.

"Protected old conviction" means:

• any Commonwealth, Territory, State, or foreign conviction which has been the subject of a pardon.
• any Commonwealth, Territory, State or foreign conviction which has been quashed.
• any old minor conviction which is deemed to be "spent" within the meaning of Part VIIC of the Crimes Act 1914.