Spent Convictions (Historical Homosexual Convictions Extinguishment) Amendment Act 2015 (ACT)

Case

Spent Convictions (Historical Homosexual Convictions Extinguishment) Amendment Act 2015

A2015-45

Contents

Page

1            Name of Act  2

2            Commencement  2

3            Legislation amended  2

4            Long title  2

5            Overview of ActSection 3 (3)  2

6            New section 5A  3

7           New section 7A  3

8            New parts 3A to 3C  4

9            Act does not affect certain other lawful actsSection 21  12

10          Act does not authorise destruction of recordsSection 22  12

11          New section 22A  13

12          New schedule 1  13

13          Dictionary, note 2  14

14          Dictionary, new definitions  14

Schedule 1 Consequential amendments  15

Part 1.1    Agents Act 2003  15

Part 1.2    Construction Occupations (Licensing) Regulation 2004    15

Part 1.3    Discrimination Act 1991  15

Part 1.4    Fair Trading (Motor Vehicle Repair Industry) Act 2010     16

Part 1.5    Firearms Act 1996  16

Part 1.6    Firearms Regulation 2008  16

Part 1.7    Liquor Act 2010  17

Part 1.8    Sale of Motor Vehicles Act 1977  17

Part 1.9    Working with Vulnerable People (Background Checking) Act 2011     17

Spent Convictions (Historical Homosexual Convictions Extinguishment) Amendment Act 2015

A2015-45

An Act to amend the Spent Convictions Act 2000 to extinguish convictions for certain homosexual offences, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

  1. Name of Act

    This Act is the Spent Convictions (Historical Homosexual Convictions Extinguishment) Amendment Act 2015.

  2. Commencement

    This Act commences on the day after its notification day.

    NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

  3. Legislation amended

    This Act amends the Spent Convictions Act 2000.

    NoteThis Act also amends other legislation (see sch 1).

  4. Long title

    before

    quashed

    insert

    extinguished convictions,

  5. Overview of Act
    Section 3 (3)

    substitute

    (3)This Act also deals with—

    (a)the effect of the quashing of a conviction and the pardoning of an offence; and

    (b)the extinguishment of convictions for historical homosexual offences.

  6. New section 5A

    insert

5AOffences against Act—application of Criminal Code etc

Other legislation applies in relation to offences against this Act.

Note 1Criminal Code

The Criminal Code, ch 2 applies to the following offences against this Act (see Code, pt 2.1):

·     s 19I (Unlawful disclosure of extinguished conviction)

·     s 19J (Improperly obtaining information about extinguished convictions).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

Note 2Penalty units

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

  1. New section 7A

    insert

7AMeaning of extinguished conviction

(1)For this Act, the conviction of a person for an offence is extinguished if the conviction is extinguished by the director‑general under section 19D (Decision on application to have conviction extinguished).

(2)In this Act, a reference to a conviction that is extinguished includes a reference to the charge to which the extinguished conviction related.

  1. New parts 3A to 3C

    insert

Part 3AExtinguishing historical homosexual offence convictions

19ADefinitions—pt 3A

In this part:

historical homosexual offence means—

(a)an offence under the following sections of the Crimes Act 1900, before the offence was repealed by the Crimes (Amendment) Ordinance (No 5) 1985, section 7:

(i)section 79 (Buggery and bestiality) to the extent that the offence relates to buggery;

(ii)section 80 (Attempt, &c., to commit buggery);

(iii)section 81 (Indecent assault on male); or

(b)an offence under another law prescribed by regulation to the extent that the offence was—

(i)constituted by a person engaging in any form of sexual activity with another person of the same sex; or

(ii)a public morality offence; or

(c)an offence of attempting, or of conspiracy or incitement, to commit an offence mentioned in paragraph (a) or (b).

public morality offence means an offence—

(a)the essence of which is the maintenance of public decency or morality; and

(b)by which homosexual behaviour could be punished.

19BApplication to have conviction extinguished

(1)A person convicted of a historical homosexual offence may apply to the director-general for the conviction to be extinguished.

(2)An application—

(a)must be made—

(i)in writing; or

(ii)in any other way the director-general is satisfied on reasonable grounds is appropriate; and

(b)must state the following:

(i)the applicant’s name, address and date of birth;

(ii)the applicant’s name and address at the time of the conviction;

(iii)to the extent known to the applicant, the date when and the court where the applicant was convicted; and

(c)may include any other information that may assist the director‑general to decide the application.

Note 1It is an offence to make a false or misleading statement, give false or misleading information or produce a false or misleading document (see Criminal Code, pt 3.4).

Note 2If a form is approved under s 22A for an application, the form must be used.

(3)If the person has died, an application may be made on behalf of the person by—

(a)the person’s legal personal representative; or

(b)a domestic partner, parent, child or sibling of the person; or

(c)a person who was in a close personal relationship with the person immediately before the person’s death; or

(d)if another person was involved in the activity that constituted the offence—the other person.

19CRequest for additional information

(1)The director-general may, in writing, request the applicant to give the director-general additional information or documents that the director-general reasonably needs to decide the application.

NoteFor how documents may be given, see the Legislation Act, pt 19.5.

(2)If the applicant does not comply with the request, the director‑general may refuse to consider the application further.

(3)The applicant is taken to have complied with the request if the applicant satisfies the director-general that the applicant is unable to comply with the request.

19DDecision on application to have conviction extinguished

(1)On application by a person under section 19B (Application to have conviction extinguished), the director-general must—

(a)extinguish a conviction; or

(b)refuse to extinguish a conviction.

(2)The director-general must not extinguish the conviction unless satisfied—

(a)if the conviction was for an offence that involved sexual activity—that the convicted person is eligible to have the conviction extinguished under section 19E; and

(b)of any other matters prescribed by regulation.

(3)The director-general must not refuse to extinguish a conviction unless—

(a)the director-general has given the applicant written notice of the proposed refusal; and

(b)the notice—

(i)states the reasons for the proposed refusal; and

(ii)includes a copy of any records relating to the conviction held by or accessible to the director-general; and

(iii)states that further information may be given to the director-general in relation to the application not later than 14 days after the day the notice is given to the applicant; and

NoteFor how documents may be given, see the Legislation Act, pt 19.5.

(c)the director-general has considered any further information given by the applicant to the director-general under paragraph (b) (iii).

(4)The director-general must tell the applicant, in writing, of the decision under subsection (1) and, if the decision is to refuse to extinguish the conviction, the reasons for it.

(5)If the director-general extinguishes the conviction the director‑general must tell the chief police officer about the decision.

NoteThe director-general must also give the person a reviewable decision notice in relation to a decision to refuse to extinguish the conviction (see s 19L).

19EEligibility

A person is eligible to have a conviction for a historical homosexual offence that involved sexual activity extinguished if the director‑general is satisfied on reasonable grounds that any other person involved in the sexual activity consented to the sexual activity and—

(a)was 16 years old or older; or

(b)was 10 years old or older and not more than 2 years younger than the person; or

(c)for a person who was under the special care of the person within the meaning of the Crimes Act 1900, section 55A (Sexual intercourse with young person under special care)—

(i)was 18 years old or older; or

(ii)was under 18 years old and not more than 2 years younger than the person.

19FDirector-general may obtain information

The director-general may, by written notice, require 1 or more of the following entities to provide the director-general with the information requested in the notice to enable a decision to be made under section 19D (Decision on application to have conviction extinguished):

(a)a public employee;

(b)a police officer;

(c)a court;

(d)the director of public prosecutions;

(e)an entity prescribed by regulation.

19GRestriction on right to re-apply

(1)This section applies to a person whose application to have a conviction extinguished (the earlier application) has been refused by the director-general under section 19D (Decision on application to have conviction extinguished).

(2)The person may have a further application in relation to that conviction considered by the director-general only if the director‑general is satisfied on reasonable grounds that other necessary supporting information became available after the earlier application was decided.

Part 3BConsequences of extinguished convictions

19HConsequences of conviction becoming extinguished

(1)The following applies to a person whose conviction has been extinguished:

(a)the person is not required to disclose information about the extinguished conviction to anyone;

(b)a question about the person’s criminal history is taken not to refer to the extinguished conviction;

(c)in applying an Act to the person—

(i)a reference to a conviction (however expressed) is taken not to refer to the extinguished conviction; and

(ii)a reference to the person’s character (however expressed) does not allow or require anyone to take the extinguished conviction into account.

NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).

(2)This section has effect despite the Health Practitioner Regulation National Law (ACT), section 77 (4), section 79 (3) and section 135 (3).

19IUnlawful disclosure of extinguished conviction

(1)A person commits an offence if the person—

(a)has access to records of convictions kept by or on behalf of a public authority; and

(b)discloses any information about an extinguished conviction to someone else.

Maximum penalty:  50 penalty units, imprisonment for 6 months or both.

(2)Subsection (1) does not apply to—

(a)an archive or library, or an authorised officer of an archive or library, that makes available to a member of the public, or to another archive or library, under the normal procedures of the archive or library, material that is normally available for public use and that contains information about an extinguished conviction; or

(b)a public authority that has a record of an extinguished conviction, or an authorised officer of the authority, that makes information about the conviction available to the convicted person; or

(c)the director-general, or any person acting under the direction of the director-general, in informing a public authority that holds information about convictions that a particular conviction is an extinguished conviction.

(3)This section has effect despite the Health Practitioner Regulation National Law (ACT), section 77 (4), section 79 (3) and section 135 (3).

19JImproperly obtaining information about extinguished convictions

A person must not fraudulently or dishonestly obtain information about an extinguished conviction from records of convictions kept by or on behalf of a public authority.

Maximum penalty:  50 penalty units, imprisonment for 6 months or both.

Part 3CNotification and review of decisions

19KMeaning of reviewable decision––pt 3C

In this part:

reviewable decision means a decision mentioned in schedule 1, column 3 under a provision of this Act mentioned in column 2 in relation to the decision.

19LReviewable decision notices

If the director-general makes a reviewable decision, the director‑general must give a reviewable decision notice to each entity mentioned in schedule 1, column 4 in relation to the decision.

Note 1The director-general must also take reasonable steps to give a reviewable decision notice to any other person whose interests are affected by the decision (see ACT Civil and Administrative Tribunal Act 2008, s 67A).

Note 2The requirements for a reviewable decision notice are prescribed under the ACT Civil and Administrative Tribunal Act 2008.

19MApplications for review

The following may apply to the ACAT for review of a reviewable decision:

(a)an entity mentioned in schedule 1, column 4 in relation to the decision;

(b)any other person whose interests are affected by the decision.

NoteIf a form is approved under the ACT Civil and Administrative Tribunal Act 2008 for the application, the form must be used.

  1. Act does not affect certain other lawful acts
    Section 21

    after

    spent

    insert

    , extinguished

  2. Act does not authorise destruction of records
    Section 22

    after

    spent conviction,

    insert

    an extinguished conviction,

  3. New section 22A

    insert

22AApproved forms

(1)The director-general may approve forms for this Act.

(2)If the director-general approves a form for a particular purpose, the approved form must be used for the purpose.

NoteFor other provisions about forms, see the Legislation Act, s 255.

(3)An approved form is a notifiable instrument.

NoteA notifiable instrument must be notified under the Legislation Act.

  1. New schedule 1

    insert

Schedule 1Reviewable decisions

(see pt 3C)

column 1

item

column 2

section

column 3

decision

column 4

entity
1 19D (1) refuse to extinguish conviction applicant

  1. Dictionary, note 2

    insert

    ·     Act

    ·     chief police officer

    ·     director-general (see s 163)

    ·     director of public prosecutions

    ·     domestic partner (see s 169 (1))

    ·     police officer

    ·     public employee

    ·     territory law

  2. Dictionary, new definitions

    insert

    extinguished, for a conviction—see section 7A.

    historical homosexual offence, for part 3A (Extinguishing historical homosexual offence convictions)—see section 19A.

    public morality offence, for part 3A (Extinguishing historical homosexual offence convictions)—see section 19A.

    reviewable decision, for part 3C (Notification and review of decisions)—see section 19K.


Schedule 1Consequential amendments

(see s 3)

Part 1.1Agents Act 2003

[1.1]Dictionary, definition of police certificate, note

substitute

NoteA conviction does not include a spent conviction or an extinguished conviction (see Spent Convictions Act 2000, s 16 (c) (i) and s 19H (1) (c) (i)).

Part 1.2Construction Occupations (Licensing) Regulation 2004

[1.2]Section 5, note

substitute

NoteUnder the Spent Convictions Act 2000, an applicant need not include in an application certain spent convictions or extinguished convictions (see that Act, s 16 (c) (i) and s 19H (1) (c) (i)).

Part 1.3Discrimination Act 1991

[1.3]Section 7 (1) (o)

after

spent conviction

insert

or extinguished conviction

Part 1.4Fair Trading (Motor Vehicle Repair Industry) Act 2010

[1.4]Dictionary, definition of police certificate, note

substitute

NoteA conviction does not include a spent conviction or an extinguished conviction (see Spent Convictions Act 2000, s 16 (c) (i) and s 19H (1) (c) (i)).

Part 1.5Firearms Act 1996

[1.5]Section 18 (1) (b) (iv), note

substitute

NoteA conviction does not include a spent conviction or an extinguished conviction (see Spent Convictions Act 2000, s 16 (c) (i) and s 19H (1) (c) (i)).

Part 1.6Firearms Regulation 2008

[1.6]Section 11 (3) (b) (iv), note

substitute

NoteA conviction does not include a spent conviction or an extinguished conviction (see Spent Convictions Act 2000, s 16 (c) (i) and s 19H (1) (c) (i)).

Part 1.7Liquor Act 2010

[1.7]Dictionary, definition of police certificate, note

substitute

NoteA conviction does not include a spent conviction or an extinguished conviction (see Spent Convictions Act 2000, s 16 (c) (i) and s 19H (1) (c) (i)).

Part 1.8Sale of Motor Vehicles Act 1977

[1.8]Dictionary, definition of police certificate, note

substitute

NoteA conviction does not include a spent conviction or an extinguished conviction (see Spent Convictions Act 2000, s 16 (c) (i) and s 19H (1) (c) (i)).

Part 1.9Working with Vulnerable People (Background Checking) Act 2011

[1.9]Section 24, note

substitute

NoteA conviction does not include a spent conviction or an extinguished conviction (see Spent Convictions Act 2000, s 16 (c) (i) and s 19H (1) (c) (i)).

Endnotes

  1. Presentation speech

    Presentation speech made in the Legislative Assembly on 17 September 2015.

  2. Notification

    Notified under the Legislation Act on 6 November 2015.

  3. Republications of amended laws

    For the latest republication of amended laws, see certify that the above is a true copy of the Spent Convictions (Historical Homosexual Convictions Extinguishment) Amendment Bill 2015, which was passed by the Legislative Assembly on 29 October 2015.

    Clerk of the Legislative Assembly

    © Australian Capital Territory 2015

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