Annulled Convictions Act 2003

Annulled Convictions Act 2003

This Act may be cited as the Annulled Convictions Act 2003.

This Act commences on a day to be proclaimed.

In this Act, unless the contrary intention appears – adult means a person who has attained the age of 18 years; annulled means – annulled under section 6 or 8; or quashed or set aside by a court; or made the subject of a free or conditional pardon; annulled conviction means a conviction that has been annulled; conviction means a conviction recorded against a person for an offence, whether on indictment or summarily or as a result of the person being taken under section 20 of the Monetary Penalties Enforcement Act 2005 to have been convicted of the offence, and whether before or after the commencement of this Act; imprisonment includes detention pursuant to a detention order made under the Youth Justice Act 1997;Justice Agency means any of the following:the Australian Federal Police; the police force or service of a State; the Australian Crime Commission established by section 7 of the Australian Crime Commission Act 2002 of the Commonwealth; the Department of Immigration and Border Protection of the Commonwealth; the Attorney-General for the Commonwealth or a State; the Director of Public Prosecutions for the Commonwealth or a State; a person employed in a Government Department or Agency of the Commonwealth or a State, or in a council, and whose primary duties include the prosecution of offences or assisting with the prosecution of offences; the Director of Corrective Services and the equivalent entity in another State; the Parole Board and the equivalent entity in another State; the Registrar or administrator of a Commonwealth or State court; the Secretary of the responsible Department in relation to the Youth Justice Act 1997 and any entity that is responsible for the administration of discrete youth justice legislation in another State; a prescribed body or person; minor conviction means any conviction other than – a conviction for which a sentence of imprisonment of more than 6 months is imposed; or a conviction for a sexual offence; or a prescribed conviction; official criminal record means a record, containing information about the outcome of criminal proceedings, kept by – a court of this State; or a Government department or State authority within the meaning of the State Service Act 2000; or a council;Parole Board means the board established by section 62 of the Corrections Act 1997; person means a natural person; sentence of imprisonment includes – any wholly suspended sentence of imprisonment; and any suspended part of a sentence of imprisonment; sexual offence means – an offence under section 124, 124A, 124B, 124C, 125, 125A, 125B, 126, 127, 127A, 128, 129, 133, 185 or 186 of the Criminal Code; or an offence under section 122 or 123 of the Criminal Code as in force immediately before 14 May 1997; or an offence under section 298 or 299 of the Criminal Code in respect of an offence referred to in paragraph (a) or (b); or an offence under section 8(1A)(a) or 35(3) of the Police Offences Act 1935; or an offence under Part 8 of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 in respect of a child abuse product, within the meaning of that Part;State includes Territory; youth means a person who has not attained the age of 18 years.

For the purposes of this Act, where a court finds a person guilty of an offence but does not proceed to record a conviction, the finding is to be regarded as a conviction.

In this Act, a reference to an annulled conviction includes a reference to – the charge to which the conviction related; and any action taken regarding a breach of prison discipline committed during a sentence of imprisonment imposed in relation to the conviction.

This Act applies not only to convictions for offences against the laws of Tasmania but also to convictions for offences against the laws of the other States, the laws of the Commonwealth and the laws of other countries.

In their application to convictions for offences against the laws of other jurisdictions, the provisions of this Act may be construed with such changes as may be necessary to enable the provisions to apply to those convictions in the way that corresponds most closely to the way in which they apply to convictions for offences against the laws of Tasmania.

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

If a person with a minor conviction is of good behaviour for a required period, the conviction is annulled.

The required period is – if the person was an adult on the day on which the minor conviction was recorded, the 10 year period commencing on that day; or if the person was a youth on the day on which the minor conviction was recorded, the 5 year period commencing on that day.

The person is taken to be of good behaviour for the required period if, during that period, he or she is not convicted of an offence punishable by a term of imprisonment.

If, during the required period, the person is convicted of an offence punishable by a term of imprisonment, the person's minor conviction is still capable of being annulled under this section but in such a case the required period in relation to the minor conviction is taken to be – if subsection (2)(a) applies to the person in relation to the minor conviction, the 10 year period commencing on the day on which the new conviction was recorded; or if subsection (2)(b) applies to the person in relation to the minor conviction, the 5 year period commencing on the day on which the new conviction was recorded.

If, by virtue of subsection (4), the period of good behaviour required to annul the person's minor conviction is taken to be different to the applicable period specified in subsection (2), subsection (4) has the same application to the new required period as it does to the required period specified in subsection (2).

In this section – non-traffic offence means an offence other than a traffic offence; traffic offence means – an offence under the Traffic Act 1925, Vehicle and Traffic Act 1999 or Heavy Vehicle National Law (Tasmania) Act 2013; or an offence under the Passenger Transport Services Act 2011 or Taxi and Hire Vehicle Industries Act 2008; or an offence under Part VII of the Local Government (Highways) Act 1982; or an offence under a prescribed enactment dealing with traffic or with vehicles or their use; or a prescribed offence; vehicle means a motor vehicle or trailer within the meaning of the Vehicle and Traffic Act 1999.

Subject to subsection (3) – a conviction for a traffic offence and any resultant sentence of imprisonment are to be disregarded in calculating, under section 6, the required period for a conviction for a non-traffic offence; and a conviction for a non-traffic offence and any resultant sentence of imprisonment are to be disregarded in calculating, under section 6, the required period for a conviction for a traffic offence.

A conviction for an offence against any of the following laws is relevant in calculating, under section 6, the required period for any conviction (whether for a traffic offence or non-traffic offence):section 167A or 167B of the Criminal Code; section 4, 6 or 14 of the Road Safety (Alcohol and Drugs) Act 1970; section 32(1), (2A) or (2B) of the Traffic Act 1925.

A person's minor conviction for an offence is annulled if –

the offence has ceased by the operation of any law to be an offence; and the offence is prescribed as being an offence to which this section applies.

If a person's conviction is annulled – the person is not required to disclose the annulled conviction to any other person; and the annulled conviction is taken not to form part of the person's official criminal record; and a question about the person's criminal history is taken not to refer to the annulled conviction but only to convictions, if any, that have not been annulled; and in applying a provision of any legislation, agreement or arrangement to the person – a reference to a conviction, however expressed, is taken not to refer to the annulled conviction; and a reference to the person's character, however expressed, is not to be taken as allowing or requiring anyone to take account of the annulled conviction; and the annulled conviction, or the non-disclosure of the annulled conviction, is not a proper ground for – refusing the person any appointment, post, status or privilege; or revoking any appointment, status or privilege held by the person or dismissing the person from any post.

Subsection (1) does not apply to the proceedings of a court or to the making of a decision by a court, including a decision about sentencing, but a court that receives evidence of an annulled conviction may take such steps as are reasonably available to it to prevent or restrict the dissemination of that evidence if the court, having regard to the object of this Act, considers it appropriate to do so in the circumstances.

Subsection (1) does not apply to the proceedings of the Parole Board or to the making of a decision by the Parole Board.

Subsection (1) does not apply to – an application for an appointment, post, status or privilege referred to in Schedule 1; or an application for registration or enrolment associated with or required for the gaining of any such appointment, post, status or privilege.

A minor conviction that has been annulled under section 6 or 8 is not capable of being revived except by order of a court in accordance with this section.

Any court may order that a minor conviction annulled under section 6 is revived if the offender is subsequently convicted on one or more occasions of the same offence as that to which the annulled conviction relates and the court is satisfied, having regard to the nature of the offence and such other matters as the court considers relevant in the circumstances, that it would be futile or not in the public interest for the person to continue to have the benefit of the annulment.

Any court may order that a minor conviction annulled under section 6 or 8 is revived if the offender is subsequently convicted of an offence and the court is satisfied, having regard to the nature of the offence, the weight it has given to the factors of deterrence and punishment in sentencing the person for the offence and such other matters as the court considers relevant in the circumstances, that it would be in the public interest for the annulled conviction to be revived.

The Supreme Court may order that a minor conviction annulled under section 6 or 8 is revived if the offender subsequently becomes a dangerous criminal, within the meaning of the Dangerous Criminals and High Risk Offenders Act 2021 and the court is satisfied, having regard to the safety of the public or any person and such other matters as the court considers relevant in the circumstances, that the annulled conviction should be revived.

If an annulled conviction is revived as provided by this section, this Act applies as if it had never been annulled.

A person must not threaten to disclose information about another person's annulled conviction. Fine not exceeding 50 penalty units.

A person with access to official criminal records must not, without lawful authority, disclose any information about another person's annulled conviction held in those records without the consent of that other person. Fine not exceeding 50 penalty units.

It is not an offence under subsection (2) for a Justice Agency in the proper discharge of the Agency's functions (or for a person who works for a Justice Agency acting in the course of his or her duty) to release information about a person's annulled conviction to – a court; or another Justice Agency to enable it to discharge, as the case requires, its legitimate enforcement, prosecutorial, administrative, penal, rehabilitative or other functions or to carry out related research; or a person or body that, pursuant to section 9(4), seeks the information for the purpose of making a determination in respect of – an application for an appointment, post, status or privilege referred to in Schedule 1; or an application for registration or enrolment associated with or required for the gaining of any such appointment, post, status or privilege; or a person carrying out research into sentencing, criminal justice or related matters, whether for academic, professional or other purposes; or the Tasmania Law Reform Institute or a law reform body of the Commonwealth or another State; or a prescribed person.

It is not an offence under subsection (2) for – an archive or library (or a person who works in an archive or library acting in the course of his or her duty) to release, in accordance with its normal procedures, material containing information about annulled convictions to a member of the public or to another archive or library if it is material that is normally available for public use; or a court (or a registrar, administrator or other officer of a court acting in the course of his or her duty) to release, in accordance with the court's normal procedures, material containing information about annulled convictions to a member of the public if it is material that is normally available for public use.

It is a defence to a charge for an offence against subsection (2) to show that the defendant acted in good faith in the honest belief that – he or she had lawful authority to disclose the information; or the conviction had not been annulled; or the convicted person had consented to the disclosure of the information.