Waters, Nigel --- "Legislation and guidelines" [1996] PrivLawPRpr 18; (1996) 3(1) Privacy Law & Policy Reporter 13

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LEGISLATION & GUIDELINES

SECURITIES COMMISSION EXEMPTED FROM SPENT CONVICTIONS SCHEME

Crimes Act 1914 (Cth), Pt VIIIC -- Statutory Rule 1996 No 7

Persons employed or contracted by the Australian Securities Commission (ASC) no longer have the protection of the Commonwealth spent convictions scheme, following the making of regulations under Sched 4 of the Crimes Act 1914 (Cth). The effect is that anyone applying to work for the ASC, as an employee, consultant or even contractor, can be asked questions about even a minor criminal record in the past which would normally be considered `spent' under the scheme. Statutory Rule 1996 No 7, gazetted on 31 January 1996, also gives the ASC an exclusion from the scheme when considering whether to prosecute or making submissions as to sentence. Previously the ASC, like other Commonwealth agencies, was expected not to ask about spent convictions, which individuals are entitled not to disclose.

In making this amendment, the then Attorney-General rejected advice from the Privacy Commissioner. This advice followed the criteria set out in the May 1990 Advice published by the Commissioner, which seeks to limit exclusions from the scheme to circumstances similar to those included in the original statute. In the Commissioner's view, the case made by the ASC to be treated as a `law enforcement agency' for the entirety of its operations was not convincing, but the Attorney-General took a contrary view, placing the ASC in the same category as the Australian Federal Police and the National Crime Authority. In all previous applications for exclusion, the Attorney-General has followed the Commissioner's advice.

Nigel Waters.