Expunging criminal records - 1990

CM 28.3.90.

That the CCL response to the Community Consultation being undertaken by the Privacy Commissioner to requests by bodies to have access to criminal records is as follows:

Exemptions for Employee Selection

  • Non-government employers No access should be granted to non-government bodies. They do not have the right of access under the present laws and the amendments to the Crimes Act should not have the effect of broadening access.
  • Government employers Government bodies not granted access under the Crimes Act should only be granted access by way of Regulations on merit and with the following conditions (which presently apply to NSW government employers’ access to NSW criminal records);
  • Access should only be granted to records which are 5 years or less old;
  • The government employer should specify each position which would have the power to seek access to such information, and justify it; and
  • In relation to each government position for which the power to access is sought, the applicant should specify those offences for which they seek conviction information (ie. there will not be a general release of all convictions), and its relevance to the work of the position.

Licensing of Individuals

Non-Government agencies

  • No exemptions should be granted to non-government agencies.

Government Agencies

  • Access should only be granted on merit and according to the conditions set out above in part 1).

Provision of Financial Benefits

  • No exemptions should be granted. The Council notes that all the named organisations which have applied to the Privacy Commissioner for exemption do not at present have right of access to such information.

    Professional and Administrative Needs

  • The only exemption which should be granted is for legal practitioners to obtain a copy of their client's criminal record with their client's written consent and by completing a statutory declaration as to the purpose and use of the information being sought.

    Responsibilities of Custodians of Old Records

  • It cannot be the intention of the 1989 amendments to require libraries and archives bodies to destroy material which may contain references to past convictions, however, many such bodies have sought exemption from the Act for fear that they will be in breach of it if they permit public access to their collections, and they have stated that they cannot cull their collections to remove such information.
  • Since the present amendments which come into force on 1 July 1990, appear to place unacceptable limits on freedom of speech and freedom of the press; and the procedure of individual exemptions by way of regulations appears impractical, too time-consuming and too expensive for each library and archive to seek individual exemption under the present Act,

The Council resolves:

That the Federal Attorney-General be asked to amend the Act so that the freedom of the libraries and archives to continue to display their collections be preserved; and in the interim, the Privacy Commissioner be asked to publish guidelines as to the interpretations of the Act to ensure that the display of such information by libraries will not be considered a breach of the Act.

 

CM 25.7.9.

That CCL opposes the proposal of the NSW Government to limit expungement of criminal records to persons sentenced to six months imprisonment or less. The law should apply to all persons who receive a sentence of thirty months or less.

This is the standard length of sentence in Britain, the federal legislation and Queensland. CCL reserves further comment on the proposal until the Bill is released. CCL is concerned that the Bill will contain extensive exemptions and also may permit too much access to criminal records.