Commonwealth Numbered Regulations - Explanatory Statements

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Explanatory Statement

Statutory Rules 1998 No. 68

Issued by the Authority of the Minister for Justice

Crimes Act 1914

Crimes Regulations (Amendment)


The Spent Convictions Scheme

Part VIIC of the Crimes Act 1914 establishes a scheme under which certain criminal convictions are taken to be "spent". The Commonwealth scheme was set up to allow "old" and "minor" convictions to be spent, thus encouraging and assisting the rehabilitation of minor offenders who have not reoffended during the prescribed period.

2.       A conviction is taken to be spent if it is

(i)       relatively minor in nature (the person was not sentenced to imprisonment for the offence or was not sentenced to imprisonment for the offence for more than 2 1/2 years); and

(ii)       a prescribed period of time has elapsed since the conviction (five years where the offence was committed by a minor, ten years in all other cases); and

(iii)       no further offences have been committed during the period referred to in (ii) above.

3.       Subject to certain exclusions, where a person's conviction is "spent" it is lawful for

that person to claim (whether on oath or otherwise) that he or she was not charged with or

convicted of the offence. Anyone else who knows or could be reasonably expected to know

that the conviction is spent is prohibited from disclosing that the person was charged or

convicted, or from taking into account the charges or conviction.

Exclusions From the Scheme

4.       There are exclusions from the scheme, many of which are designed to exempt

Government bodies to enable them to require disclosure of convictions when assessing the

suitability of a person for employment with that government department or agency. There is

also a general exclusion set down by paragraph 85ZZH(k) of the Crimes Act exempting "a

prescribed person or body, for a prescribed purpose, in relation to a conviction for a prescribed offence" That enables regulations to be made to exclude any organisation (either public or private) from the scheme where that organisation can make out a case for an exclusion. Regulation 8 of the Crimes Regulations (the Regulations) states that the exclusions are set out in schedule 4 to the Regulations.

5.       Citizen Advocacy Western Sydney Incorporated (Citizen Advocacy) applied for

exclusion under that exemption.

The Amendments

Exclusion Extended to Citizen Advocacy

6.       Citizen Advocacy is granted a partial exclusion from the application of the spent

convictions scheme. Citizen Advocacy describes itself as "a movement which aims to

recognise, promote and defend the rights and interests of people with intellectual disability".

It engages people to work on a voluntary basis as "advocates". Advocates have a close and

personal relationship with the intellectually disabled. They spend large amounts of time

with them alone, assisting them in a variety of ways, ranging from offering friendship, to

assistance, with financial management. They also act for the disabled in a representative

capacity as a "voice" or advocate.

7.       Subregulation 1.1 provides for the amendment to the Regulations. Schedule 4 to the

Regulations is amended by the addition of new item 17 (subregulation 2.1). Citizen

Advocacy will be permitted to require a person seeking engagement as a volunteer advocate

to disclose convictions of "offences against the person". The description "offences against

the person", has a technical meaning and is already used in the regulations relating to spent convictions. Convictions for offences other than "offences against the person" will remain within the spent convictions scheme.

8.       Citizen Advocacy is only being granted an exclusion for the purposes of assessing the

suitability of a person to voluntarily act as an advocate and/or to have responsibility for the

care of an intellectually disabled person. The scheme applies in the usual way to a person

seeking engagement with Citizen Advocacy in any other capacity, whether that engagement

is on a voluntary or remunerated basis.

The Views of the Privacy Commissioner

9.       Paragraph 85ZZ(1)(b) of the Crimes Act, requires the Privacy Commissioner to

examine any written requests for complete or partial exclusion of persons from the

application of the spent convictions scheme and to advise the Minister whether an exclusion

should be granted and whether there should be any restrictions on the circumstances in

which an exclusion should apply.

10. The Privacy Commissioner was consulted on the request for exclusion by Citizen Advocacy. The Privacy Commissioner supports an amendment to the Regulations granting

a partial exclusion to Citizen Advocacy, and restricting that exclusion to offences against the person.

11. The regulations commenced upon gazettal.

Exemption From The Spent Convictions Scheme: Explanatory Statement

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