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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Spent Convictions (Miscellaneous) Amendment
Bill 2012
A BILL FOR
An Act to amend the Spent
Convictions Act 2009.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of Spent Convictions
Act 2009
4Amendment of
section 3—Preliminary
5Amendment of section 4—Meaning
of spent conviction
6Amendment of section 5—Scope of
Act
7Insertion of
section 6A
6AQualified
magistrates
8Amendment of section 7—Determination of
qualification period
9Amendment of section 8—Spent
conviction—general provision
10Insertion of section
8A
8ASpent conviction for an
eligible sex offence
11Amendment of section
13—Exclusions
12Insertion of section
13A
13AExclusions may not
apply
13Insertion of Schedule 2
Schedule 2—Provisions relating to
proceedings before a qualified magistrate
1Interpretation
2Extent of
application
3Notice
of application
4Conduct of
proceedings
5Principles governing hearings
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Spent Convictions (Miscellaneous) Amendment
Act 2012.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Spent Convictions
Act 2009
4—Amendment
of section 3—Preliminary
(1) Section 3(1)—after the definition of eligible
juvenile offence insert:
eligible sex offence means a sex offence (being either an
eligible adult offence or an eligible juvenile offence) for which a sentence of
imprisonment is not imposed;
(2) Section 3(1)—after the definition of qualification
period insert:
qualified magistrate—see section 6A;
5—Amendment
of section 4—Meaning of spent
conviction
Section 4—after subsection (1) insert:
(1a) In addition, if—
(a) a finding is treated as a conviction under section 3(5);
but
(b) no conviction is recorded against the person,
then the finding, as constituting a conviction for the purposes of this
Act, will be taken to be immediately spent.
6—Amendment
of section 5—Scope of Act
(1) Section 5(1)—after "convictions" insert:
(and no other convictions)
(2) Section 5(2)(b)—after "sex offence" insert:
unless the offence is an eligible sex offence
After section 6 insert:
6A—Qualified magistrates
(1) For the purposes of this Act, a qualified magistrate is
a magistrate in relation to whom a consent is in force under
subsection (2) and
who has been approved by the Chief Magistrate to act as a qualified magistrate
in accordance with
subsection (3).
(2) A magistrate may,
by instrument in writing, consent to acting as a qualified magistrate under this
Act.
(3) The Chief
Magistrate may, by instrument in writing, approve a magistrate in relation to
whom a consent is in force under
subsection (2) to
act as a qualified magistrate under this Act.
(4) A qualified magistrate has, in relation to the exercise of a function
conferred on a qualified magistrate by this Act, the same protection, privileges
and immunities as a magistrate has in relation to proceedings in the Magistrates
Court of South Australia.
(5) A magistrate who
has given consent under
subsection (2) may,
by instrument in writing, revoke the consent.
(6) An approval of a magistrate to act as a qualified magistrate under
subsection (3) is
revoked if—
(a) the qualified magistrate revokes his or her consent in accordance with
subsection (5) or
ceases to be a magistrate; or
(b) the Chief Magistrate determines that the magistrate should not
continue to be a qualified magistrate.
8—Amendment
of section 7—Determination of qualification period
Section 7(1)—delete "this section" and substitute:
this Act
9—Amendment
of section 8—Spent conviction—general provision
(1) Section 8—after "an offence" insert:
, other than a sex offence,
(2) Section 8—after its present contents as amended by this
section (now to be designated as subsection (1)) insert:
(2) Subsection (1) operates subject to section 4(1a).
After section 8 insert:
8A—Spent conviction for an eligible sex
offence
(1) A conviction for an eligible sex offence is spent if, on application
by the convicted person in accordance with the regulations, a qualified
magistrate makes an order that the conviction in spent.
(2) An application for an order under this section in respect of a
conviction—
(a) may not be made until the completion of the qualification period for
the conviction; and
(b) may not be made if a qualified magistrate has refused to make an order
under this section in respect of the same conviction within the proceeding
2 years.
(3) An application under this section may not be made in respect of a
conviction for an offence against the laws of another jurisdiction.
(4) Schedule 2 applies to an application under this section and to
proceedings on an application.
(5) The making of an order under this section is at the discretion of the
qualified magistrate and that discretion will be exercised having regard
to—
(a) the nature, circumstances and seriousness of the offence;
and
(b) if a victim impact statement was furnished to the sentencing court in
connection with the sentencing of the applicant for the offence (and that
statement is available to the qualified magistrate)—anything referred to
in that statement; and
(c) any penalty imposed, and any other order or requirement made or
imposed by a court, in relation to the offence; and
(d) the length of time since the conviction; and
(e) all the circumstances of the applicant, including the circumstances of
the applicant at the time of the commission of the offence and at the time of
the application and whether the applicant appears to have rehabilitated and to
be of good character; and
(f) whether the spending of the conviction and the non-disclosure of the
offence to other persons by operation of an order under this section might
present a risk to the public (and, if so, the extent of that risk);
and
(g) whether there is any other public interest served in not making the
order; and
(h) any other matter considered relevant by the qualified
magistrate.
11—Amendment
of section 13—Exclusions
(1) Section 13(2)—delete "Subject to subsection (3), the"
and substitute:
The
(2) Section 13(3)—delete subsection (3) and
substitute:
(3) The exclusions do not apply in relation to a conviction that is
constituted by a finding that is to be treated as a conviction under
section 3(5) and that is taken to be spent under
section 4(1a).
(4) An exclusion under clause 6, 7 or 8 of Schedule 1 does not
apply in relation to an offence committed by a particular person if a qualified
magistrate has made an order to that effect under section 13A.
After section 13 insert:
13A—Exclusions may not apply
(1) A person in relation to whom a conviction for an offence is spent may
apply to a qualified magistrate for an order that 1 or more of
clauses 6, 7 and 8 of Schedule 1 do not apply in relation to the
offence.
(2) An application under this section must be made in accordance with the
regulations.
(3) An application for an order under this section in relation to an
offence may not be made if a qualified magistrate has refused to make an order
under this section in relation to the same offence within the proceeding
2 years.
(4) An application under this section may not be made in respect of a
conviction for an offence against the laws of another jurisdiction.
(5) Schedule 2 applies to an application under this section and to
proceedings on an application.
(6) The making of an order under this section is at the discretion of the
qualified magistrate and that discretion will be exercised having regard
to—
(a) the nature, circumstances and seriousness of the offence;
and
(b) in the case of an application that relates to clause 6 of
Schedule 1—if the offence involved a child or children; and
(c) in the case of an application that relates to clause 7 of
Schedule 1—if the offence involved a vulnerable person or persons;
and
(d) if a victim impact statement was furnished to the sentencing court in
connection with the sentencing of the applicant for the offence (and that
statement is available to the qualified magistrate)—anything referred to
in that statement; and
(e) any penalty imposed, and any other order or requirement made or
imposed by a court, in relation to the offence; and
(f) all the circumstances of the applicant, including the circumstances of
the applicant at the time of the commission of the offence and at the time of
the application and whether the applicant appears to have rehabilitated and to
be of good character; and
(g) whether the removal of the exclusion by operation of an order under
this section might present a risk to children, vulnerable persons or the public
more generally (and, if so, the extent of that risk); and
(h) whether there is any public interest served in not making the order;
and
(i) any other matter considered relevant by the qualified
magistrate.
(7) An order under this section will have effect according to its
terms.
After Schedule 1 insert:
Schedule 2—Provisions relating to proceedings
before a qualified magistrate
1—Interpretation
In this Schedule—
exemption order means an order under
section 13A;
prescribed order means an exemption order or a spent
convictions order;
spent convictions order means an order under
section 8A.
2—Extent of application
(1) An application for an exemption order may relate to more than
1 relevant clause under Schedule 1 and be made in relation to more
than 1 offence.
(2) An application for a spent conviction order may be made in relation to
more than 1 conviction.
(3) An application for an exemption order and an application for a spent
conviction order made by the same person may be heard jointly.
3—Notice of application
(1) The Attorney-General and the Commissioner of Police—
(a) must each be served with a copy of an application for a prescribed
order; and
(b) may each intervene in the proceedings relating to an application for a
prescribed order and, in so doing, be represented at a hearing of the
application.
(2) In addition, in the case of an application for an exemption order that
relates to clause 6 or 7 of Schedule 1, the designated
Minister—
(a) must be served with a copy of the application; and
(b) may intervene in the proceedings relating to the application and, in
so doing, be represented at a hearing of the application.
(3) In this clause—
designated Minister means—
(a) in relation to an application for an exemption order that relates to
clause 6 of Schedule 1— the Minister for Children's Protection;
and
(b) in relation to an application for an exemption order that relates to
clause 7 of Schedule 1— the Minister for Disabilities;
Minister for Children's Protection means the Minister who has
portfolio responsibility for the office within the public service that is
primarily concerned with the provision of criminal history assessments for the
purposes of Part 2 Division 3 of the Children's
Protection Act 1993;
Minister for Disabilities means the Minister who has
portfolio responsibility for matters associated with the interests of persons
with a disability.
4—Conduct of proceedings
(1) An application for a prescribed order must be heard in private unless
the applicant consents to the hearing being in public or the qualified
magistrate considers that, in the circumstances of the case, the hearing should
be in public.
(2) If a hearing is held in private, the qualified magistrate may give
directions as to who may be present.
(3) If a hearing is held in public, the qualified magistrate may order
that there must not be published by any means any particulars likely to lead to
the identification of the applicant.
5—Principles governing
hearings
(1) In any proceedings
for a prescribed order—
(a) the qualified magistrate is not bound by the rules of evidence but may
inform himself or herself as the qualified magistrate thinks fit; and
(b) the qualified magistrate must act according to equity, good conscience
and the substantial merits of the case without regard to technicalities and
legal forms.
(2) Without limiting
subclause (1) and
despite any other clause, but subject to
subclause (3),
a qualified magistrate may, if he or she thinks it appropriate, conduct all or
part of any proceedings entirely on the basis of documents without the applicant
or any representative attending or participating in a hearing.
(3)
Subclause (2) does
not apply if the Attorney-General or another Minister, or the Commissioner of
Police, has intervened in the proceedings.
(4) A qualified magistrate may, if satisfied that an application for a
prescribed order is vexatious, misconceived or lacking in substance, dismiss the
application without holding a hearing.