Northern Territory Explanatory Statements Northern Territory Explanatory Statements[Index] [Search] [Download] [Bill] [Help]
2018
LEGISLATIVE ASSEMBLY OF
THE
NORTHERN TERRITORY
ATTORNEY-GENERAL AND MINISTER FOR JUSTICE
Expungement of Historical Homosexual Offence Records Bill 2018
SERIAL NO. 45
EXPLANATORY STATEMENT
GENERAL OUTLINE
The Expungement of Historical Homosexual Offence Records Bill 2018 seeks to establish an administrative scheme for the expungement of charges and convictions in relation to expungable offences involving homosexual activity or behaviour.
The Bill provides that a person previously charged with or convicted of an expungable offence may apply to the Chief Executive Officer of the Department the Attorney-General and Justice (the CEO) to have the charge or conviction expunged. The effect of expungement will be that the person will no longer be required to disclose that charge or conviction, including under oath. Government agencies identified in the Bill as holding official criminal records relating to the expunged conviction or charge will be required, upon receiving a written notice from the CEO, to annotate the records relating to that conviction or charge. The annotation must indicate that the records relate to an expunged criminal record and include a warning that it is an offence to disclose an expunged charge or conviction.
Finally, the Bill makes consequential amendments to the Anti-Discrimination Act, the Care and Protection of Children Act, the Juries Act and the Legal Profession Act.
The Expungement of Historical Homosexual Offence Records Bill 2018 is a response to the Motion by the Australian Senate to call on state and territories to enact legislation to purge convictions relating to historical homosexual conduct.
NOTES ON CLAUSES
Part 1 Preliminary matters
Clause 1. Short Title
This is a formal clause which provides for the citation of the Bill. The Bill, when passed, may be cited as the Expungement of Historical Homosexual Offence Records Act 2018.
Clause 2. Commencement
This is a formal clause which provides when the Act will commence. The Act will commence on a day fixed by the Administrator by Gazette notice.
Clause 3. Object of Act
This clause sets out the primary objectives of the Act. These objectives are different to the current ‘spent convictions’ statutory scheme, under the Criminal Records (Spent Convictions) Act. The primary purposes of are to create an administrative process to allow individuals to apply to have their historical homosexual criminal records expunged and, by expunging their records, to restore these individuals, to the extent possible in law, as if the convictions or charges had never occurred.
Clause 4. Definitions
This clause defines various words and expressions used in the Act. The key definitions are ‘applicant’, ‘application’, ‘charge’, ‘conviction’, ‘court’, ‘determination’, ‘expungable offence’, ‘personal information’, ‘record’ and ‘revocation’. The definition of ‘charge’ is adopted from a specific recommendation of the Queensland Law Reform Commission’s 2016 Report ‘Expunging criminal convictions for historical gay sex offences’ (QLRC Report). ‘Charge’ and ‘conviction’ are broadly defined so that they are inclusive of all potential relevant criminal records.
Clause 5. Act binds Crown
This is a standard clause that provides that the Act binds the Crown in the right of the Territory and, to the extent that the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.
Clause 6. Application of Criminal Code
This is a standard clause that provides that Part IIAA of the Criminal Code applies to an offence against the Act. Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof.
Part 2 Expungement Process
Clause 7. Expungable offences
This clause sets out all the relevant offences which can be considered for expungement under this scheme. Clause 7(a) and (b) include the repealed provisions which could be used to criminalise consensual homosexual conducts in the past. From 1911 until 1983, the Northern Territory criminal law was subject to the Criminal Law Consolidation Act 1876 (SA) and sections 71 and 72 of that Act criminalised any conduct involving buggery or sodomy including attempts. Between 1984 and 2003, the Criminal Code in the Northern Territory criminalised consensual sexual conduct, including carnal knowledge and gross indecency between adult males not conducted in private (section 127) and homosexual activity conducted in private where one of the parties was not an adult (section 128). These offences were repealed following the introduction of the Law Reform (Gender, Sexuality and De facto Relationships) Act in 2003.
Clause 7(c) provides for the flexibility to prescribe eligible offences by regulation in the future. Allowing for the inclusion of additional criminal offences by regulation was considered by the QLRC Report to be adequate in capturing all the relevant offences.
Clause 7(d) provides for public morality or decency offences which could be used in the past to target homosexual behaviours. Examples such as loitering at a known gay beat or public displays of affection between same-sex couples may be considered as expungable offences if there is evidence to satisfy the CEO that these offences were used to punish homosexual behaviour. Clause 7(e) is included to ensure that the standard extensions of criminal responsibility, namely attempts, conspiracy and incitement to commit a primary offence under clause 7(a)-(d) fall within the expungement scheme.
Clause 8. Criteria to expunge charge or conviction
This clause establishes the criteria that the CEO is to be satisfied of in determining an application. Because the eligibility of the offences has been defined broadly to accommodate any potential past discriminatory practices across a range of offences, it is crucial that any application is subject to the appropriate and necessary scrutiny before a decision is reached to expunge the relevant criminal records.
Clause 8(a) provides that the CEO must be satisfied that the offence for which the application is made is an expungable offence as defined in clause 7.
Additionally, the CEO is required to be satisfied, on the civil standard of the balance of probabilities, that:
(b) the person charged with or convicted of the expungable offence would not have been charged with the offence, but for the fact that the conduct engaged in by the person or conduct constituting the offence was suspected of being or connected to, homosexual activity; and
(c) the conduct engaged in by the person or constituting the offence would not, at the time an application is considered, constitute an offence under the law of the Northern Territory.
Clause 8(c) will ensure that the CEO does not expunge charges or convictions for conduct that would still be an offence under NT law at the time the application is made. This follows closely the model adopted in the Historical Homosexual Convictions Expungement Bill 2017 (WA).
Clause 9. Application to expunge records
Clause 9 sets out the categories of persons who may apply to have a conviction or charge expunged and the information that must or may be included in the application.
Clause 9(1) provides for the right of a person who was convicted of or charged with an expungable offence to apply to the CEO.
Clause 9(2) provides that where a person has died, their surviving spouse or de facto partner, parent, child or sibling, executor of their will or administrator of their estate, or a person who was in a close personal relationship with them prior to their death or a person who was involved in the conduct that was the subject of the charge or conviction, may make application on their behalf. This will ensure the expungement scheme is fair by acknowledging the existence of historical wrongs and the impact of any injustice experienced by the deceased and their family even though the scheme cannot remedy these ill-effects after the person has died.
Clause 9(3) provides that where a person has impaired decision-making capacity, their guardian, the Public Guardian, an attorney appointed under an enduring power of attorney, a decision-maker appointed under the Advance Personal Planning Act, their spouse or de facto partner, parent, child or sibling, or a person who was in a close personal relationship with them prior to their death or a person who was involved in the conduct that was the subject of the charge or conviction, may make application on their behalf. This will ensure the scheme also recognises the rights and needs of adults with impaired decision making capacity by allowing their appropriate guardians or family to make the application on their behalf.
Clause 9(4) sets out the information which must be included in the approved form for an application for expungement. This includes the full name, date of birth and contact details of the person the subject of the application, together with a description of the offence, (if relevant) the name and location of the court they were convicted in, the date of the charge or conviction and (if any) copy of any transcript or sentencing remarks relevant to the charge or conviction in the possession of the applicant. This is consistent with the recommendation of the QLRC Report and the applicant is only required to provide the particulars of the offence if he or she knows this information.
Where the application is being made on behalf of someone else, the applicant’s name and contact details must also be provided. Another important part of the application includes an authorisation from the applicant providing consent to the CEO to inquire into the charge or conviction and for the disclosure of any information or document relevant to the application.
Clause 9(4)(f) specifically provides that an application can be accompanied by any other information the applicant considers may help the CEO to determine the application. For example, this may include statements and written evidence given by the applicant themselves or any other person, including any other person involved in the conduct constituting the offence for which the conviction was made or charge was laid.
Clause 9(5) clarifies that an application can be submitted with respect to multiple charges or convictions.
Clause 10. Insufficient Information
The provision of further information in support of an application for expungement is governed by clauses 10 and 11 of the Bill.
Clause 10(1) provides that where an application does not contain the mandatory information specified in clause 9, the CEO may issue a notice to the applicant requiring the production of that information within 28 days or a longer period if such period is specified by the CEO.
Clause 10(2) provides that the applicant can submit any further documents or information to the CEO at any time between the lodgement of the application and the making of a determination by the CEO.
Notwithstanding the CEO’s ability to issue a notice requiring further information under clause 10(1), clause 10(3) provides that the CEO may consider an application that does not provide all of the mandatory information required under clause 9(4), at the CEO’s discretion. However, clause 13(2) also provides that, where an applicant has not complied with a notice requiring further information issued under clause 10(1), the CEO may treat the application as having been withdrawn.
Given the passage of time since the historical homosexual offences in clause 7(a) and (b) were repealed, clause 10(4) allows that an applicant may be taken to have complied with a clause 10(1) notice requiring further information if the applicant has satisfied the CEO that they are unable to comply with the requirement. The practical implication of this clause is that statements from the applicant outlining the steps taken to locate the requested information and the reasons why it could not be located or was not available may satisfy the CEO that all reasonable steps have been taken to fulfil the requirements of a notice issued under clause 10(1).
Clause 11. Additional information from applicant
Clause 11(1) gives the CEO the power to request additional information from the applicant by written notice after the initial application was submitted. This information can be any further information or documents that the CEO considers are reasonably required to assist in determining the application.
Clause 11(2) allows the CEO to release documents or information which are in the CEO’s possession or control to the applicant. This will enable the applicant to understand what additional information is required. This will also allow the applicant to consider the records and determine whether to provide any additional information or withdraw the application.
Clause 12. Security of Information
In order to comply with the relevant privacy obligations under the Information Act, clause 12(1) makes it clear that the CEO is not allowed to disclose personal information concerning any other person, other than the person who is the subject of the application.
Clause 12(2) also gives power for the CEO to request the applicant to verify any information or document provided by the applicant by way of statutory declaration.
Clause 12(3) provides for the necessary protections for any person or body who gives information in good faith to the CEO pursuant to a request as part of this scheme.
Clause 13. Withdrawal of application
Clause 13 allows for the applicant to withdraw an application for expungement.
Clause 13(1) provides that an applicant may withdraw their application at any time before that application has been determined by the CEO.
Clause 13(2) provides that the CEO may consider an application to be withdrawn in circumstances where an applicant has not complied with a notice to provide mandatory information issued under clause 10(1) or additional information requested by a notice issued under clause 11(1).
Despite this, clause 13(3) allows further applications to be made in the future even if an application is withdrawn. This is to be distinguished from clause 18 where subsequent applications are disallowed, unless new and relevant evidence becomes available or there are extenuating circumstances, after a determination has already been made to refuse the application.
Clause 14. Making inquiries
Clause 14(1) makes it clear that the CEO has a duty to take reasonable steps to inquire into the charge or conviction once an application is made. Failure to supply the information required under clause 9(4) does not prevent the CEO from making reasonable enquiries and considering the application.
Similar to clause 11(1), clause 14(2) empowers the CEO to require a range of people or government bodies, by notice, to provide information and documents relevant to an application. The holders of records to whom clause 14 applies are the Director of Public Prosecutions, the registrar of a court, the Police Commissioner, a public sector employee or any person or body prescribed by the regulations. Due to the passage of time and potential difficulties in retrieving any evidence, it is necessary that the CEO has the power to request information from ‘any other person or body prescribed by the regulations’ for the purpose of tracing relevant information.
In addition, clause 14(3) allows the CEO to request a particular item of information or document and can specify the manner, form of and the timing within which this information is produced.
Once the notice is received, clause 14(4) obliges the person or government agency to take all reasonable steps to comply with the request in a timely manner.
Clause 15. Consideration of application
Clause 15(1) requires the CEO to consider an application as soon as practicable after it is received.
However, clause 15(2) provides that the CEO must not hold an oral hearing to determine the application. Convictions and charges in relation to historical homosexual offences carry stigma for those affected and may have resulted in experiences of discrimination and shame. Requiring an oral hearing process has the potential to cause unnecessary trauma. These procedures are consistent with the recommendations of the QLRC Report.
Under clause 15(3), the CEO must consider whether any person involved in the conduct did or did not consent to the conduct and also consider the ages of the persons involved at the time of the conduct. This is to ensure that charges and convictions are not expunged if they relate to conduct that would still be unlawful under current laws, for example, rape or sexual intercourse with a child under 16.
Clause 15(3)(c) provides that in addition to the above mandatory considerations, the CEO must also have regard to any other matters which the CEO considers reasonably relevant in the circumstances of each particular application. This provides the CEO with sufficient discretion to take into account matters which were specific to the time when the person was charged or convicted such as discriminatory practices or culture of enforcement authorities.
Clause 16. Proposed refusal
Under clause 16, the CEO must notify the applicant in writing if the CEO intends to make a decision refusing to expunge a charge or conviction.
Clause 16(2) provides that the written notice must contain the reasons for the proposed refusal and copies of all relevant records the CEO is relying on to support the proposed refusal. The notice must also explain the applicant’s right to request the NTCAT to review the determination of the CEO and to object to the proposed refusal and provide further information and submissions within 28 days of receiving the notice.
Clause 16(3) allows the applicant to give further submissions or information within 28 days of receiving the notice of proposed refusal. For example, the applicant may wish to provide further statements or evidence to establish that the relevant sexual activity was consensual.
Clause 16(4) obliges the CEO to consider any further submissions or information provided by the applicant before making a final decision to refuse the application.
Clause 17. Determination of application
This clause establishes how the CEO is to determine an application for expungement and sets out the necessary procedures which follow a determination.
Clause 17(1) requires the CEO to approve an application if satisfied that the application meets the assessment criteria set out in clauses 8 and 14. The test is on the balance of probabilities.
Conversely, clause 17(2) requires the CEO to deny an application if not satisfied that the application meets the same assessment criteria. Again, the prescribed test is on the balance of probabilities.
Regardless of whether the CEO approves or denies the application, clauses 17(3) and 17(5) ensure that written notices with reasons for the determination are provided by the CEO to the applicant and the holders of any relevant records.
Clause 17(4) stipulates that the determination is deemed to be effective as soon as the applicant receives the written notice.
Clause 18. Subsequent application
In order to strike a balance between finality and fairness, clause 18 does not permit any subsequent applications to be made after a determination was made to refuse the earlier application, unless there are extenuating circumstances or new and relevant evidence becomes available. Similar provisions can be found in the Victorian, Tasmanian and Queensland expungement schemes.
Clause 19. Expunging records
This clause sets out what is to happen to the records once a charge or conviction has been expunged.
Once a charge or conviction has been expunged, the CEO is required to notify the holder of any relevant record as soon as practicable.
Clause 19(1) then imposes obligations on the holder of a record to take all reasonable steps to annotate any official criminal records under their management or control to indicate that the charge or conviction has been expunged and include a warning that it is an offence to disclose expunged charges or convictions.
Clause 19(1)(c) provides for flexibility in the scheme as further annotation requirements may be prescribed by regulation. The requirement to annotate records is found in the equivalent expungement schemes in WA, Tasmania, Victoria and Queensland and will give a more comprehensive effect to expungement of historical homosexual criminal records in the NT by requiring relevant government record holders to correct the records which have been the subject to expungement.
Clause 19(2) requires the holder of any relevant record to advise the CEO in relation to the date, the extent of compliance and any reasons for non-compliance with the annotation requirements. In the event that the holder of the record is unable to comply with the requirement, clause 19(3) allows the CEO to give written directions as to what steps are to be taken.
This obligation to annotate records is not absolute because it may not be possible to identify and locate all of the relevant records or, in some cases, to annotate a record without destroying other records. Clause 19(4) provides that the holder of the record is deemed to have complied with the requirement if the CEO is satisfied that they have done everything which is reasonably practicable in the circumstances to comply with the requirement.
Clause 19(5) states that the CEO must provide the information mentioned in clause 19(2) to the applicant.
Further, clause 19(6) clarifies that the Act does not authorise or require the destruction of official criminal records beyond the requirement in clause 19(1) on the holder of a record to annotate a record to reflect that a conviction has been expunged. It is important to retain the original records because it is possible that a determination to expunge a charge or conviction may be revoked pursuant to Part 3 of the Bill. It is also important to preserve the information in the records for legitimate research purposes.
Clause 20. Effect of expungement
This clause is a key provision of the Bill. It gives effect to one of the main objectives of the Bill, i.e. to treat the person in law as if the person had never committed, been charged with, prosecuted for, convicted of , or sentenced for the offence once the charge or convicted is expunged.
Clauses 20(2) and 20(3) set out in detail the consequences of an expunged charge or conviction which are as follows:
• a reference to a person’s character in any legislation, agreement or arrangement is taken not to refer to an expunged charge or conviction;
• any evidence used to prove the person had an expunged charge or conviction is not admissible in any court or tribunal proceedings;
• a person is entitled to lawfully claim, on oath or in any other way before any court or tribunal that they were never charged with or convicted of the offence;
• a question about the person’s criminal history is taken not to refer to an expunged charge or conviction – this includes questions asked under oath in legal proceedings (for example, during a trial);
• a person is not required to disclose his or her expunged charge or conviction to any other person, including when giving evidence in legal proceedings;
• a reference to a person’s character in any form is taken not to refer to an expunged charge or conviction;
• an expunged charge or conviction, or the non-disclosure of an expunged charge or conviction is not a ground for refusing or revoking any appointment, office, status or privilege held by the person or dismissing the person from any office;
• a person is entitled to seek a review or reapply for a permit, license or registration if the suspension or refusal or revocation was due to adverse decisions made prior to expungement in relation to an expunged charge or conviction.
Clause 20(4) ensures the above effects of expungement extend to all related criminal processes such as arrest, investigation and court appearance.
Clause 20(5) clarifies that the consequences of expungement contained in clause 20(3) take precedence over any obligations of disclosure in the Health Practitioner Regulation National Law, the Criminal Records (Spent Convictions) Act and any other legislation in relation to a charge, conviction, criminal record or criminal history.
Sections 77(4), 79(3) and 135(3) of the Health Practitioner Regulation National Law (NT) relate to the powers of health practitioner registration boards to seek criminal history checks for people seeking registration as a health practitioner under that Act.
Unlike the Criminal Records (Spent Convictions) Act where spent convictions can still be disclosed in certain circumstances such as applying for work with vulnerable people or applying to become a police officer or for appointment as a judge, expunged charges and convictions are not required to be disclosed in legal proceedings or for any employment or volunteer check.
Clause 21. No entitlement to compensation
This clause makes it clear that there is no entitlement to compensation of any kind in relation to an expunged charge or conviction. This provision bars all potential claims arising out of the expungement scheme and its acknowledgement of any historical charge or conviction. A person cannot claim compensation for their original charge, prosecution, conviction or sentence for an expungable offence, or for being ordered to pay any money at the time of their original conviction or sentence. Compensation cannot be claimed on the basis that a charge or conviction has been expunged. Compensation is also not available to any person who has suffered loss or suffered any consequence as a result of the original charge or conviction or its expungement.
The preclusion from compensation also extends to other parties. For example, a person is not entitled to compensation as a result of a relative’s expunged charge or conviction. Similar clauses are included in the legislation for the schemes in Western Australia, Tasmania, Victoria and Queensland.
Part 3 Revocation process
Clause 22. Revoking a determination to expunge
Clause 22(1) allows the CEO to revoke the determination to expunge a charge or conviction if the CEO is satisfied that the charge or conviction was expunged on the basis of false or misleading information or documents. For example, the applicant has submitted false information that the conduct constituting the offence was consensual, when it was not. The inclusion of the discretion to revoke a determination to expunge a charge or conviction is in response to one particular aspect of the recommendations of the QLRC Report which is to maximise the integrity of the scheme.
Clauses 22(2) and 22(3) are provisions which seek to ensure procedural fairness. Similar to clause 16, the CEO must notify the applicant in writing of an intention to revoke the decision to expunge a charge or conviction.
Likewise, clause 22(3) provides that the written notice must contain the reasons for the proposed revocation and copies of all relevant records the CEO is relying on to support the proposed revocation. The notice must also explain the applicant’s right to request the NTCAT to review the decision of the CEO to revoke and the right to object to the proposed revocation and to give further information and submissions within 28 days of receiving the notice.
Clause 22(4) allows the applicant to give further submissions or information within 28 days of receiving the notice of proposed revocation.
Clause 22(5) obliges the CEO to consider any further submissions or information provided by the applicant before making a final decision to revoke the determination.
Once a final decision is made, clauses 22(6) and 22(8) ensure that written notices with reasons for the final decision are provided by the CEO to the applicant and the holder of any relevant record as soon as practicable.
Finally, clause 22(7) stipulates that the revocation is deemed to be effective as soon as the applicant receives the written notice.
Clause 23. Restoring records
This clause sets out what is to happen to the records once a decision has been made to revoke the determination to expunge a charge or conviction.
Once a decision to revoke the expungement is made, the CEO is required to notify the holder of any relevant record as soon as practicable of the decision.
Clause 23(1) then imposes obligations on the holder of a record to take all reasonable steps to annotate any official criminal records under their management or control to indicate that the charge or conviction is no longer expunged and remove the warning that it is an offence to disclose expunged changes or convictions.
Clause 23(1)(c) further obliges the record holders to remove any statement or information where were added as a result of the original determination to expunge.
Clause 23(2) further requires the holder of a relevant record to advise the CEO in relation to the date, the extent of compliance and the reasons for non-compliance with the requirements in subsection (1). In the event that the holder of the record is unable to comply with the requirement, clause 23(3) allows the CEO to give written directions as to what steps are to be taken.
This obligation under subsection (1) is not absolute. Clause 23(4) provides that the holder of a record is deemed to have complied with the requirement if the CEO is satisfied that they have done everything which is reasonably practicable in the circumstances to comply with the requirement.
Clause 23(5) states that the CEO must provide the information mentioned in clause 23(2) to the applicant.
Clause 24. Effect of revocation
Clause 24 ensures that the effects of expungement mentioned in clause 20 have no application once an expungement is revoked.
Part 4 Offences
Clause 25. Unlawful disclosure
Clause 25(1) provides that it is an offence for any person with access to records of charges or convictions to disclose any information about an expunged conviction and charge.
This applies equally to both direct and indirect disclosure. An offence against this provision attracts a maximum penalty of 6 months imprisonment or 50 penalty units.
Strict liability applies to the element of the person having access to records of charges or convictions.
The fault element of intention applies as to the person’s conduct. The conduct must result in the disclosure of information about an expunged charge or conviction and the fault element of recklessness applies to that result.
Clause 25(3) provides the circumstances where the offence in clause 25(1) does not apply, namely:
• where disclosure is expressly authorised or required in this Act; or
• where disclosure is necessary for the performance of a function or the exercise of a power under this Act; or
• where disclosure is made with the written consent of the person who was charged or convicted; or
• where disclosure is in line with ordinary procedure of making the information available by an officer of an archive or library for public use; or
• where disclosure is for statistical or research purposes, provided that the form of disclosure de-identifies the person who was charged or convicted.
Pursuant to section 43BU of the Criminal Code, there is an evidential burden on the defence regarding any of the matters raised in clause 25(3).
Clause 26. Dishonestly obtaining information
Clause 26 provides that it is an offence to obtain information about another person’s expunged charge or conviction in a dishonest manner.
An offence against this provision attracts a maximum penalty of 6 months imprisonment or 50 penalty units.
Absolute liability applies to the physical element that the information is contained in a record and strict liability applies to the physical element that the information is about an expunged charge or conviction.
The fault element for the physical element of obtaining information is intention.
The additional elements of the offence are that the person’s conduct was dishonest according to the standards of ordinary people and the person knew that conduct was dishonest according to the standards of ordinary people.
The QLRC Report recommended this offence be included to ensure any information about an expunged charge or conviction is protected from any inappropriate access given the highly sensitive nature of such information.
Part 5 Administrative matters
Clause 27. Prior lawful acts not affected
This clause clarifies that this Act does not affect things that were done lawfully before a charge or conviction was expunged by the operation of this Act. For example a person will not be in breach of the Act for disclosing a charge or conviction under another Act before this Act commences.
Clause 28. Protection from liability
This clause provides that a person doing anything for the purposes of the Act is protected from civil and criminal liability as long as the person has done so in good faith and exercising a power or performing a function under this Act. This includes an omission of doing anything.
Clause 29. Powers of Chief Executive Officer
This clause allows the CEO to approve the form or any documents used as part of the expungement scheme and allows the CEO to delegate their functions or powers under the Act. The practical intention of this clause is to provide that the CEO may delegate their functions and powers to another person within the Department.
Clause 30. Review by Northern Territory Civil and Administrative Tribunal
Through this clause, the Act confers jurisdiction on the Northern Territory Civil and Administrative Tribunal (NTCAT) for review of decisions made by the CEO. Clause 30(2) provides that an affected person is either the applicant or the person with the charge or conviction where that person did not make the application.
Clause 30(2) provides that an affected person may apply to NTCAT for review of a decision.
The decisions which can be reviewed by NTCAT are listed in clause 30(1) to include a decision of the CEO to refuse an application under clause 17(2) or a decision to revoke a determination to expunge a conviction or charge under clause 22(1).
Clause 30(3) provides that the hearing of the review is to be closed to the public and that the publication of information about a proceeding which identifies or assists with ascertaining the identity of the person is prohibited. The NTCAT retains the discretion to authorise publication of information if the NTCAT is satisfied the benefit of publication outweighs any disadvantages associated with interfering with the person’s privacy.
Clause 31. Regulations
This clause is a standard regulation making provision.
Part 6 Consequential amendments
This Part provides for consequential amendments to be made to the Care and Protection of Children Act, the Juries Act and the Legal Profession Act as a result of the Act.
Part 6, Division 1 Anti-Discrimination Act
Clause 32. Act amended
Clause 32 identifies the Act that is amended by Part 6, Division 1, namely the Anti-Discrimination Act.
Clause 33. Section 4 amended (Interpretation)
Clause 33 inserts subsection (ab) into section 4 of the Anti-Discrimination Act to clarify that the definition of ‘irrelevant criminal record’ includes a record which is expunged under this Act. It is noted that ‘irrelevant criminal record’ is listed in section 19 of the Anti-Discrimination Act as one of the prohibited grounds of discrimination.
Part 6, Division 2 Care and Protection of Children Act
Clause 34. Act amended
Clause 34 identifies the Act that is amended by Part 6, Division 2, namely the Care and Protection of Children Act.
Clause 35 Section 190 amended (Provision of information)
Clause 35 inserts subsection (3) into section 190 of the Care and Protection of Children Act to clarify that the power to give, collect and maintain any information about the criminal history of an applicant for a clearance notice for the purpose of child-related employment does not apply to an expunged charge or conviction. This will ensure that a charge or conviction will not be subject to any disclosure requirements once it is expunged, consistent with the legal effects of expungement as set out in clause 20(3)(c), (d) and (e).
Part 6, Division 3 Juries Act
Clause 36. Act amended
Clause 36 identifies the Act that is amended by Part 6, Division 3, namely the Juries Act.
Clause 37 Section 10 amended (Persons not qualified)
Clause 37 inserts subsection (2A) into section 10 of the Juries Act to clarify that an expunged charge or conviction is not a ground to disqualify any person from serving as a juror.
Part 6, Division 4 Legal Profession Act
Clause 38. Act amended
Clause 38 identifies the Act that is amended by Part 6, Division 4, namely the Legal Profession Act.
Clause 39 Section 11 amended (Suitability matters)
Clause 39 inserts subsection (3) into section 11 of the Legal Profession Act to clarify that an expunged charge or conviction is to be excluded in assessing the suitability of a person to be admitted to the legal profession and to hold a local practicing certificate. In particular, new subsection (3)(c) clarifies that the power to give or request information about a person’s criminal history does not apply to an expunged charge or conviction. Again, this will ensure that a charge or conviction will not be subject to any disclosure requirements once it is expunged, consistent with the legal effects of expungement as set out in clause 20(3)(c), (d) and (e).
Part 6, Division 5 Repeal of Part
Clause 40 Repeal of Part
This is a standard clause which provides that Part 6 of the Act ceases to have effect the day after it commences. As Part 6 amends existing legislation, there is no need for it to be retained once it has performed its function of amending the other legislation.