The Private Life of Guilty People: New Laws on Clean State Convictions and Prisoners'

Claims – A Privacy Perspective

Tim McBride

Barrister & Legal Consultant

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• Title of my address

• My background / perspective

• Focus

• Relevance to this forum

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• Concept of privacy• Public facts (eg. convictions), becoming private

facts over time• In what circumstances?• Impact of Hosking (NZCA)• Tucker [1986] 2 NZLR 716• “…the thorny problem of expunging criminal

records after lapse of time…” (737, per McGechan J).

Broadcasting Standards Authority – Privacy Principles

• Principle (ii)• …The protection of privacy also protects against

the public disclosure of some kinds of public facts.

• The ‘public’ facts contemplated concern events (such as criminal behaviour) that have, in effect, become private again, for example, through the passage of time.

• Nevertheless, the public disclosure of public facts will have to be highly offensive to the reasonable person…

“Spent Convictions” – Australian Law Reform Commission Report No 37 (1987)

*Difficulties faced by former offenders

*Balancing of their interests against the public interest in the prevention and detection of crime

*Need to minimise the negative consequences of old (spent) convictions

ALRC ‘Spent Convictions’ Report (ctd)

• ‘…An old conviction, followed by a substantial period of good behaviour, has little, if any relevance as an indicator of how the offender will behave in the future.

• In such circumstances reliance on the old conviction will generally result in serious prejudice to the offender which will outweigh to a great degree its value as an indicator of future behaviour.

• Consequently, it is in accordance with sound social policy that the old conviction be regarded as spent…’ (ALRC, para 15).

Clean Slate laws - Evolution

• ‘Spent convictions’ legislation has been enacted in most jurisdictions comparable to NZ

• Some has been on the statute books for decades• Why has it taken so long to enact some form of

‘clean slate’ legislation in NZ?• Criminal Records Bill 1988• Nandor Tanczos’ private member’s bill – 2001• Government bill – select committee scrutiny• Criminal Records (Clean Slate) Act 2004 – came

into force on 29 November 2004

Criminal Records (Clean Slate) Act 2004

• ‘clean slate’ created only in certain carefully defined circumstances

• ‘eligible persons’ covered• certain convictions concealed – not wiped• automatic – clean slate application not required• ‘all or nothing’ re eligibility• ‘question based’ re those with access to criminal

records• only official ‘criminal records’ covered

The Act covers all information about an individual’s criminal record including any -

• Charges laid that have resulted in conviction

• Convictions (except those under Armed Forces Disciplinary Act 1971)

• Sentences• Orders imposed as a result of a conviction• All official records relating to the above

are covered.

Individuals must satisfy the following conditions

before their convictions can be concealed -• No convictions within the last 7 years• Never been sentenced to a custodial sentence (eg.

imprisonment, borstal)• Never been ordered by a court, following a

criminal case, to be detained in a hospital due to their mental condition

• Not been convicted of a ‘specified offence’ (eg. Sexual offences involving children, rape or incest)

continued

• Paid in full any fine, reparation, or costs, ordered by a court in a criminal case

• Never been indefinitely disqualified from driving

Individuals can request a copy of their criminal record from the Privacy Unit at the Ministry of

Justice

• They do not have to apply for a ‘clean slate’• There are two situations when individuals can

apply to a court to have a particular conviction disregarded

• (1)When the conviction relates to an offence which has since been decriminalised

• (2)When they have been convicted of a ‘specified offence’ (referred to above), but a non-custodial sentence was imposed

Individuals loose their ‘clean slate’ if they are convicted of another offence

• They regain the ‘clean slate’, if and when, all the necessary conditions are again satisfied

• ‘Concealed’ convictions can still be disclosed in certain exceptional circumstances. These include –

• (1) When individuals apply for certain types of employment (eg. As a police, prison, or probation officer; judge; justice of the peace)

continued

• (2) Employment situations involving the care and protection of children (eg. as a foster parent)

• (3) Investigation and prosecution of further offences

• (4) In criminal and civil proceedings

Individuals cannot conceal their convictions when they complete official forms,

when travelling overseas• The Act applies to any employment situation

(other than those ‘exceptional circumstances’ outlined above)

• It also applies to any other situation where an individual is asked about their criminal record (eg. on a tenancy, insurance, or bank application)

• In other than ‘exceptional circumstances’ (referred to above), individuals who meet all the requirements for the concealing of their criminal convictions, may answer a question about their previous convictions, by stating that they “have no convictions”.

Government depts and law enforcement agencies must conceal the criminal records of individuals

covered by the ‘clean slate’ scheme

• Law enforcement agencies include –• Police• Serious Fraud Office• Dept of Corrections• Legal Services Agency• Land Transport Safety Authority• Ministry of Justice• Dept of Labour• Inland Revenue Dept• NZ Customs Service

Perspectives

• Is the Act working?• Green Party press release (28/11/04)• ACT Party view – Stephen Franks (24/5/05)• Sponsor of original bill (Nandor Tanczos) –

current views• Business NZ (cf, their view in 1988)• Dept of Labour employment application form• Insurance (eg. VERO)• Employment vetting agency• Ministry of Justice

Prisoners’ and Victims’ Claims Act 2005

• Background• Taunoa & Others v A-G (HC – 2 Sept 2004)• MacMillan v Dept of Corrections (HRRT

Decision No 8/04 – Issued 2/4/04)• Political reaction (ie. of certain politicians)• Submissions (eg. ACCL)• Justice & Electoral Committee Report• Bill enacted 2005• First decision under Act – late July 2005 (Judge

Erber – Chch)

P+VC Act 2005

• Key features

• Effect on prisoners’ right to sue for compensation

• Victims – new entitlements

• My focus today – amendments to the Privacy Act 1993

Amendments to the Privacy Act (ie. as a result of the enactment of the P&VC Act)

• PA, s88 (damages provision) amended• New subsection (1A)• Subsection (1) continues to apply• However, when an action for compensation is

commenced by a prisoner [Nb. Broad definition of ‘prisoner’] under the PA, s88 (1) is now subject to subpart 1 of Part 2 of the P&VC Act

• Key sections in Part 2 (above) are ss13-15• Victims have first claim on any monetary

compensation awarded to a prisoner under Privacy Act

P&VC Act 2005

• Act makes it clear that it does not prevent a prisoner from making a complaint, or ‘seeking assistance’ from the Privacy Commissioner’s Office (s 15)

• Act does affect any proceedings commenced by prisoners under the Privacy Act

• HRRT must now be satisfied that the plaintiff (ie. the prisoner), has made ‘reasonable use of all specified internal and external complaints mechanisms reasonably available’ and has ‘not obtained redress’ that the HRRT ‘considers effective’ (s 13)

In deciding whether ‘compensation is required to provide effective redress’, and the quantum,

the HRRT must take into account -

• Extent to which plaintiff / defendant, or both, ‘took all reasonable steps to mitigate (their) loss’

• Whether defendant’s breach of / interference with the plaintiff’s right was ‘deliberate / in bad faith’

• ‘relevant conduct’ of the plaintiff• ‘consequences’ to plaintiff of breach of /

interference with plaintiff’s right• ‘freedoms / interests / liberties / principles /

values recognised + protected by the right concerned’

continued

• Need to deter other breaches / interferences

• Extent to which (if any) effective redress could have been provided other than by compensation

• ‘any other matters’ HRRT considers relevant (s 14 (2))

Conclusion

Tim McBride

Barrister & Legal Consultant

timmcbride@xtra.co.nz