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Compliance note 2/91: Information about old convictions

Federal Privacy Commissioner, updated as at November 2002

Use of information about an old minor criminal conviction, which in itself is not a reliable indicator of future behaviour, can seriously disadvantage people in getting on with their lives: obtaining employment or promotion, applying for insurance, credit or occupational licence, or seeking registration and membership of organisations. Recognising the hardship and injustice this can cause, the Federal Parliament passed a new law in June 1989 to prevent discrimination against a person on the basis of an old minor conviction.

This Compliance Note is intended for use by all State and Local government agencies, and by private companies, organisations and individuals so that they can conform to the Commonwealth law which protects persons who have certain old minor criminal convictions. This law came into force on June 30 1990, as Part VIIC of the Crimes Act 1914, and is referred to as the Commonwealth Spent Conviction Scheme. As far as anyone other than Commonwealth agencies is concerned, Part VIIC of the Crimes Act deals with the collection, use and disclosure of information relating only to Commonwealth or Territory convictions. A Territory conviction means a conviction for an offence against an Australian Territory law. Australian Territories include Christmas Island, Norfolk Island and the Australian Antarctic Territory. Convictions under the laws of the Australian Capital Territory or of the Northern Territory since self-government are considered to be convictions under State laws.

This law covers situations where:

1. an individual was granted a free and absolute pardon because he or she was wrongly convicted;
2. the conviction was quashed; or
3. the conviction is spent. A Commonwealth conviction is spent if a pardon was granted for a reason other than wrongful conviction or if it meets ALL the following conditions:
   • It is 10 years or more since the date of the conviction (or five years since the date of the conviction if the person was dealt with as a juvenile);
   • The sentence IMPOSED (not what was actually served) was a fine, bond, community service order or imprisonment for a period of less than 30 months;
   • There have not been any further offences in the ten (or five) year period; AND
   • An exclusion does not apply (for further information, see page 3 of this Note).

Where there is a further Commonwealth offence within the ten (or five) year period, and it is a summary offence, the court may order the waiting period for the earlier offence to be extended until the waiting period for the later offence has expired. Where the later offence is an indictable offence, the waiting period for the earlier offence is automatically extended until the waiting period for the later offence has expired.

Effects of the legislation

If the spent, quashed or pardoned conviction was for a Commonwealth or Territory offence, an individual has the right not to disclose that conviction to anyone in Australia. That individual can claim on oath or otherwise that he or she was not charged with, or convicted of, the offence. If a person has such a conviction, anyone who knows or could reasonably be expected to know about the conviction must not take it into account or, without the consent of the first person, disclose it to any other person.

The role of the Federal Privacy Commissioner

Anyone who believes that his or her rights under the Commonwealth Spent Conviction Scheme have been breached should ring the Privacy Hotline on 1300 363 992. A formal complaint can be lodged with the Federal Privacy Commissioner, who can provide a range of remedies including reinstatement to a position or financial compensation. Generally, if you think that your privacy rights have been infringed, you need to try to work out the problem with the organisation or agency you are concerned about, before you complain to the Federal Privacy Commissioner. For further information about the complaint process, please refer to the How to make a Complaint section of the Commissioner’s website.

Part VIIC of the Crimes Act also vests responsibility in the Federal Privacy Commissioner for assessing applications from organisations for complete or partial exclusions from meeting the requirements of the new law and recommending to the Attorney-General whether an exclusion should be granted, and what conditions should apply. Organisations wishing to apply for an exclusion should address their inquiries to the Federal Privacy Commissioner.

Guidelines on handling protected old conviction information

Collection

Careful consideration needs to be given to whether or not information about criminal history, particularly old convictions, is relevant to the purpose at hand. In a majority of cases, other means such as on-the-job assessment or referee reports may serve as better indicators of suitability for a particular job.

In Australia, when collecting information directly from individuals, including asking questions (written or oral) for the purposes of employment, licensing, registration or the provisions of goods, services or benefits, information about a quashed or a spent Commonwealth conviction or a free and absolute pardon, cannot be taken into account or disclosed.

This means that questions such as "Do you have a criminal record?" or "Do you have any convictions?" are inappropriate as they may lead to disclosure of information about protected old convictions. For example, a life insurance company when deciding whether to issue a policy should not require an applicant to declare old convictions that may be regarded as spent. Nor is it advisable for an employer to ask a question which may require a prospective or actual employee to declare a spent conviction.

To ensure compliance with the obligations under Part VIIC of the Crimes Act, it is advisable to take into account and/or disclose only those adult convictions which occurred in the last 10 years. If it is perceived that information about older convictions is relevant, the following form of questions is acceptable:

1. 1) Do you have any adult Commonwealth or Territory convictions which are less than 10 years old? and/or Do you have any juvenile Commonwealth or Territory convictions which are less than 5 years old? If Yes, provide details below.
2. 2) Do you have any convictions for Commonwealth or Territory offences which are over 10 years old (or 5 years for juvenile convictions), where the sentence imposed was imprisonment for a period greater than 30 months? If Yes, provide details below.

IMPORTANT: These two questions do not purport to cover all the questions about criminal record which are lawful under Part VIIC of the Crimes Act; questions about foreign and State offences and matters pending before the Courts are not unlawful. In asking about State convictions, State and Local Government agencies, private companies, organisations and individuals need also to comply with relevant State spent convictions schemes. State spent convictions laws currently in force include the Queensland Criminal Law (Rehabilitation of Offenders) Act 1986, the WA Spent Convictions Act 1988, the NSW Criminal Records Act 1991, the NT Criminal Records (Spent Convictions) Act 1992 and the ACT Spent Convictions Act 2000. Most other States have begun to enact legislation to protect the rights of people with old minor convictions. Further information about State legislation should be sought from the appropriate State authority.

Criminal history checks

Any person or body who already knows or could reasonably be expected to know about a Commonwealth or Territory conviction of an individual, must not take it into account or, without the individual's consent, disclose it where it is lawful for the individual not to disclose the information.

This means that even when the person concerned inadvertently discloses information about a protected old Commonwealth conviction, it cannot be taken into account.

Most police forces do not undertake criminal history checks for private organisations. In those cases where police do provide information about Commonwealth or Territory offences, for example at the request of State Departments and agencies, the information disclosed should be limited to only those convictions where the sentence imposed was more than 30 months imprisonment or convictions in the last ten years. Forms currently in use which seek a person's consent to obtain from a police force or anyone else information about criminal record may need to be modified. The person must be informed that he or she is not legally required to disclose protected old conviction information. As far as is practicable, a person's consent must be specific, naming the types of information sought and from which authority.

Where anyone legitimately holds information about protected old convictions, requests from anyone else for that information should not be granted unless the holder of the information has the consent of the person concerned to disclose that information.

Storage and use of protected old conviction information

As far as is practical, people in positions of responsibility should take reasonable stepsto ensure that information about pardons, quashed and spent convictions is removedand/or kept separately from other personnel records.

Care should be taken to ensure that the information collected for the purpose of checking aperson's criminal history is both up to date and relevant. It may happen that informationcollected by current or past employers may become protected by the spent convictionlegislation over the course of the years. Such information should not be used when assessing thesuitability of a person for a new position or a promotion. At this point, given a knowledge ofother qualities which might serve as better indicators of a person's suitability, taking into accountinformation about old minor convictions might be considered superfluous.

Exclusions from the scheme

Information about quashed convictions or free and absolute pardons can never be taken intoaccount or disclosed. With spent convictions, however, Division 6 of Part VIIC of the CrimesAct and Statutory Rules No 227 of 1990 provide for exclusions from the operation of thelegislation.

Effect of an exclusion

Exclusions have been granted to some State government and private sector groups for particularpurposes. An exclusion has the effect of removing or restricting the rights of an individual with aminor old conviction. Exclusions are either complete or partial. A complete exclusion meansthat information about all criminal convictions may be required to be disclosed or taken intoaccount. With a partial exclusion, only specific convictions may be required to be disclosed ortaken into account. A full list of exclusions is available from the Federal Privacy Commissioner,as are details of how to apply for complete or partial exclusions.

Courts, when making decisions about sentencing offenders, have a complete exclusion; as dosome State governments when assessing the suitability of a person for appointment as a justiceof the peace. Public libraries when making available material for research, reference and studyhave also been granted a complete exclusion.

Where there is a complete exclusion, any form which requires personal particulars in relation tocriminal history should include an explanation of the legal basis for the exclusion, for example:

Under Statutory Rules No 227, Schedule 4 of the Crimes Regulations, theGovernment of Queensland has been granted a complete exclusion from theapplication of Division 3 of Part VIIC of the Crimes Act 1914 in assessing persons forappointment as a justice of the peace. You are therefore required to provide detailsof any criminal convictions or findings of guilt recorded against you.

With a partial exclusion only information related to convictions for certain prescribed offencescan be disclosed or taken into account. For example, child care centres, when consideringemploying a person to care for children, can take into account information about spentconvictions for sex offences or offences where the victim was a child. Where a partial exclusionhas been granted, a series of structured questions should be used which would enable thenecessary information to be obtained without having to ask the individual to disclose informationon spent convictions which are not subject to the exclusion. The question should be prefacedby an explanation of the legal basis for the partial exclusion, for example:

Under Section 85ZZH, Part VIIC of the Crimes Act 1914, this Child Care Centrehas been granted a partial exclusion from the application of Division 3, Part VIIC of theCrimes Act 1914 for the purpose of finding out whether a person who is beingassessed for employment or engagement in relation to the care, instruction orsupervision of minors has been convicted of a sexual offence or any other offenceagainst a person if the victim of the offence was under 18 at the time the offencewas committed. You are therefore required to provide details of any convictions orfindings of guilt recorded against you for a sexual offence or any other offenceagainst a person if the victim of the offence was under 18 at the time the offencewas committed.

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

1. Do you have any adult Commonwealth or Territory convictions which are less than 10years old? and/or Do you have any juvenile Commonwealth or Territory convictionswhich are less than 5 years old? If Yes, provide details below
2. Do you have any Commonwealth or Territory convictions which are over 10 years old(or 5 years for juvenile convictions), where the sentence imposed was imprisonment for aperiod greater than 30 months? If Yes, provide details below
3. Have you ever been convicted of a sexual offence or any other offence against a person ifthe victim of the offence was under 18 at the time the offence was committed? If Yes,provide details below.

Again, care needs to be taken to ensure compliance with relevant State legislation when asking about State convictions.