The effects of criminal convictions

09 Sep 2016 - 11:53 | Version 6 |

Contributed by RennieAnderson and current to 1 May 2016

A person convicted of an offence may well find the hardship continues well beyond their prison sentence. Some of the consequences of conviction last for life; some are laid down by law, others, such as loss of friends and social esteem, are imposed by society.

Having a 'record'

The NT police has a criminal records section that holds records on all arrests, all court appearances (including Youth Justice Court appearances), outcomes and sentences imposed. Also recorded are:
  • an offender's full name, aliases, residential address, personal description (hair and eye colour, height, identifying marks and build) and date of birth;
  • the offences the offender was charged with and their outcome;
  • the date of court appearances, including those when the person charged does not appear;
  • the date any convictions were recorded and the sentences imposed.
This information remains on record permanently, unless a charge is found not proved and the person charged applies to the Commissioner of Police to have records of their fingerprints destroyed and all other evidence of the charge removed.

Special rules apply regarding the discharge of criminal records for young people under the Youth Justice Act and Spent Convictions Scheme (see Spent convictions , below).

How can a previous conviction affect a person's rights?

A conviction can impact significantly on a person's life, as follows.

Public office

A person convicted of a serious offence can be refused the right to hold public office. Under the Local Court Act a judge who is convicted of an indictable offence can be removed from that office. Under section 201 of the Migration Act 1958 (Cth) a person who is not an Australian citizen, who has been in Australia for less than ten years (either continuously or in aggregate) and who is convicted of an offence and imprisoned for at least one year may be deported.

Voting

The Commonwealth Electoral Act 1918 (Cth) provides that a person who is serving a sentence of imprisonment on a fulltime basis for an offence against a law of the Commonwealth or a State or Territory loses the right to vote in Federal elections while in prison [s.93(8AA)]. The High Court of Australia has recently held that this section of the legislation is unconstitutional and invalid [Roach v Electoral Commissioner [2007] HCA 43]. There is no loss of voting rights in Territory elections.

Jury service

Under the Juries Act [s.10] a person is disqualified from jury service: when that person has been convicted of an offence carrying life imprisonment as a maximum; has been sentenced to imprisonment and is still serving their sentence; or a period of less than seven years has elapsed since they completed a sentence (sentence of imprisonment includes parole periods, home detention, and suspended sentences).

Licences

An applicant for certain licences, such as a travel agent's or a builder's licence, must be a fit and proper person to hold a licence or be of good name or character, depending on the wording of the relevant Act. Some licences may be revoked if the holder commits certain types of offences. For example, a licensee of premises where liquor is sold or consumed can be subject to disciplinary action or have their licence revoked where they have been convicted of certain indictable offences, such as fraud or dishonesty. A motorist who is convicted of certain traffic offences may have their driver's licence revoked.

Professional registration

People in certain occupations or professions, such as doctors, dentists, lawyers, nurses and teachers, must be registered under their own special and separate Acts of Parliament. A registration board or, in the case of lawyers, the Supreme Court, may refuse to register or renew the registration of a person convicted of certain offences, because it suggests they are not of good character.

Public employment

A conviction for a criminal offence can affect a person's ability to obtain employment in the public service. An applicant may be refused employment if their offence is considered to be more than minor. A Federal Government public servant convicted of a criminal offence can be suspended or dismissed. A NT Government public servant convicted of a serious offence can be subjected to disciplinary action or dismissal.

Private employment

It may be lawful for an employer to take into account a person's conviction where the offence for which a person has been convicted is relevant to the duties of the job. However, if the employer bases employment decisions on the person's conviction for an offence that is not relevant to the job, they may be acting in a discriminatory manner (see Convictions and discrimination below).

Insurance

A person who has a criminal conviction for a serious offence or an offence of particular relevance to insurance, such as arson, may find property insurance difficult to obtain.

Convictions and discrimination

The NT Anti-Discrimination Act makes it illegal for a person to be discriminated against on the grounds of an irrelevant criminal record [s. 19(1)(q)]. A criminal record is considered irrelevant if any of the following apply:
  • the conviction is spent (see Spent convictions below);
  • no charges were laid, charges were dismissed, the person was found not guilty or pardoned, or the conviction was quashed or set aside;
  • the circumstances relating to the offence for which the person was convicted are not directly relevant to the situation in which the discrimination arises.
The only occasion on which a person may discriminate against another person on the grounds of an irrelevant criminal record in the area of work is if:
  • the work involves the care of vulnerable persons such as children, old people and people with a physical or intellectual disability or mental illness;
  • the discrimination is reasonably necessary to protect the physical, psychological or emotional well-being of those vulnerable persons [s. 37 Anti-Discrimination Act].
There are no set rules about when a conviction must be disclosed. The NT Anti-Discrimination Act makes it unlawful for a person to ask another person, whether verbally or in writing, to supply information on which unlawful discrimination may be based [s.26]. For example, an employer may only ask questions about a person's previous convictions if there are offences relevant to the position. However, in practice, this is difficult to apply, as most employers seek information about a person's prior convictions by asking for permission to access their entire police records. Advice from the NT Anti-Discrimination Commission should be sought by a person who is concerned about this situation.

Spent convictions

In 1990 the Spent Convictions Scheme was enacted under the Criminal Records (Spent Convictions) Act (NT). If a conviction is spent it does not generally have to be disclosed and may be disregarded. Under the Scheme, a conviction is spent if all of the following conditions are satisfied:
  • it is ten years since the date of conviction (or five years in the case of youth offenders);
  • the sentence imposed (not the sentence served) was a fine, bond, community service order or a prison term of less than six months;
  • the person has not re-offended during or after the ten (or five) years waiting period;
  • an exclusion does not apply (see Exclusions below).
The following protections are available to people with a spent conviction:
  • a spent conviction for a Federal, State or Territory offence does not have to be disclosed to any Federal Government authority;
  • any person who knows or ought reasonably to know about a spent conviction can't take it into account or disclose it without consent;
  • the individual can claim on oath that they do not have a conviction.
Note, however, that protections may vary according to the type of offence (Federal, State, Territory or foreign) that gave rise to the conviction. Note also that a spent conviction for a State, Territory or foreign offence has more limited protections when dealing with State or local government authorities, private companies and organisations and individuals, and is dependent on individual State and Territory laws.

Exclusions

Some organisations and authorities have been granted exclusions to the protections outlined above. These exclusions are limited to the gathering of information on spent convictions for particular purposes, and are extended to:
  • courts, when making decisions, such as sentencing
  • government departments when employing people in positions that require access to certain types of classified national security information
  • child care centres which can find out about spent convictions for sex offences or offences where the victim was a child.
These exclusions do not apply if a conviction has been set aside or a pardon granted.

Where a court does not proceed to conviction

Where a person has been convicted of an offence but a court, without recording the conviction, discharges the person absolutely, the criminal record of the conviction is spent immediately the person is discharged [s.7 Criminal Records (Spent Convictions) Act].

Where a youth is placed on a no-conviction order (of any kind) the criminal record for the offence is a spent conviction when the period specified in the order expires provided the offender has complied with the conditions of the order [s.7(3) Criminal Records (Spent Convictions) Act].

Where an adult is placed on a no-conviction bond, the criminal record for the offence is a spent conviction when the period specified in the bond expires provided the offender has complied with the conditions of the bond [s.7(4) Criminal Records (Spent Convictions) Act].

Complaints

If these rights are breached, complaints can be made to the Office of the Australian Information Commissioner. The Commissioner will investigate the complaint and may award a wide range of remedies to a complainant where a breach is shown, including financial compensation and reinstatement to a position.

Complaints should be made in writing.

Child Protection Offender Register

The Child Protection (Offender Reporting and Registration) Act will apply if a person is found guilty of one of a range of offences against a child. The offences include (but are not limited to): possession of child pornography; sexual intercourse with a child; murder or manslaughter of a child; and acts of gross indecency against a child.

The Act provides that such 'reportable offenders', if not in custody, must provide information to the Commissioner of Police including their name, date of birth, address, the names of any children who reside in their household or with whom they have unsupervised contact, place of employment, affiliation with any club or organisation that has child members or participants, vehicles, distinguishing marks including tattoos, information regarding relevant criminal history and details of travel plans [s.16].

The reportable offender must notify the Commissioner of Police if their personal details change [s.19] and must provide an updated report of the information each year [s.18]. The reporting period will depend on the nature of the offender's crime. Reporting obligations will generally be imposed for between eight and 15 years [s.37].

The information obtained by the Commissioner of Police from the reportable offender is collated and maintained in the child protection offender register [s.64]. The access to the register is restricted [s.65].

The Commissioner may apply to a court for a child protection prohibition order which will prohibit the person from engaging in certain conduct [s.72] including associating with certain people, attending specific locations, or engaging in certain employment [s.73].

The fact that an offence in respect of which a reportable offender has been found guilty becomes spent does not affect the status of the offence as a reportable offence [s.97].

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