South Australian Bills South Australian Bills[Index] [Search] [Download] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Spent Convictions (Decriminalised Offences) Amendment
Bill 2020
A BILL FOR
An Act to amend the
Spent
Convictions Act 2009
.
Contents
Part 2—Amendment of Spent Convictions
Act 2009
5Amendment of section
3—Preliminary
6Amendment of section 5—Scope of
Act
7Amendment of section 8A—Spent conviction
for eligible sex offence
8Insertion of sections 8B and 8C
8BSpent conviction
for designated sex-related offence
8CSpent conviction
for prescribed public decency offence
9Variation of Schedule
1—Exclusions
10Variation of Schedule 2—Provisions
relating to proceedings before a qualified magistrate
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Spent Convictions (Decriminalised Offences)
Amendment Act 2020.
This Act comes 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
Long title—delete ";" and substitute:
or if the conduct constituting the offence has been
decriminalised
5—Amendment
of section 3—Preliminary
(1) Section 3(1), definition of designated sex-related
offence—after paragraph (b) insert:
or
(c) an offence against—
(i) section 69, 70 or 71 (other than section 70(1)(b) or (c)) of
the
Criminal
Law Consolidation Act 1935
before its repeal by the
Criminal
Law Consolidation Act Amendment Act 1972
(No 94 of 1972); or
(ii) section 69 (other than section 69(1)(b)(ii) or (iii)) of
the
Criminal
Law Consolidation Act 1935
before its repeal by the
Criminal
Law (Sexual Offences) Amendment Act 1975
(No 66 of 1975); or
(iii) any other provision, prescribed by regulation, that involves
consensual sexual activity between persons of the same sex; or
(d) an offence against the common law substantially corresponding to an
offence referred to in paragraph (a) or (c); or
(e) an offence of attempting, or of conspiracy or incitement, to commit an
offence mentioned in paragraphs (a) to (d);
(2) Section 3(1), definition of eligible sex
offence—delete the definition and substitute:
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;
(3) Section 3(1)—after the definition of overseas
jurisdiction insert:
prescribed public decency offence means an offence against
public decency or morality by which homosexual behaviour could be punished (but
does not include a sex offence);
6—Amendment
of section 5—Scope of Act
(1) Section 5(1)—after paragraph (c) insert:
(d) a conviction for a prescribed public decency offence.
(2) Section 5(2)(b)—after "eligible sex offence" insert:
or a designated sex-related offence
7—Amendment
of section 8A—Spent conviction for eligible sex
offence
(1) Section 8A(5)—delete "(subject to subsection (6))"
(2) Section 8A(6)—delete subsection (6)
8—Insertion
of sections 8B and 8C
After section 8A insert:
8B—Spent conviction for designated sex-related
offence
(1) A conviction for a designated sex-related offence is spent if, on
application in accordance with the regulations, a qualified magistrate makes an
order in accordance with
subsection (5)
that the conviction is spent.
(2) The following persons may apply for an order under this
section:
(a) the convicted person;
(b) a person specified in Schedule 2 clause 1A, in the
circumstances specified.
(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) A qualified
magistrate must make an order that a conviction for an offence is spent if
satisfied that—
(a) the offence is a designated sex-related offence; and
(b) the conduct
engaged in by the convicted person or constituting the offence would not, at the
time the application is considered, constitute an offence under the law of the
State.
(6) In considering
matters in
subsection (5)(b)
relating to an offence that falls within the ambit of paragraph (c)
or (d) of the definition of designated sex-related offence (or an
offence of attempting, or of conspiracy or incitement, to commit such an
offence), the qualified magistrate must have regard to—
(a) whether any person involved in the conduct that was the subject of the
conviction did or did not consent to the conduct; and
(b) the ages and respective ages of any persons involved in the conduct
that was the subject of the conviction; and
(c) any other matter the qualified magistrate reasonably considers
relevant in the circumstances.
8C—Spent conviction for prescribed public decency
offence
(1) A conviction for a prescribed public decency offence is spent if, on
application in accordance with the regulations, a qualified magistrate makes an
order in accordance with
subsection (6)
that the conviction is spent.
(2) The following persons may apply for an order under this
section:
(a) the convicted person;
(b) a person specified in Schedule 2 clause 1A, in the
circumstances specified.
(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) An application for an order under this section may be made
irrespective of whether the conviction the subject of the application has been
spent under section 8.
(5) Schedule 2 applies to an application under this section and to
proceedings on an application.
(6) A qualified
magistrate must make an order that a conviction for an offence is spent if
satisfied that—
(a) the offence is a prescribed public decency offence; and
(b) the convicted person would not have been charged with the offence but
for the fact that the conduct engaged in by the person or constituting the
offence was suspected of being, or being connected to, homosexual activity;
and
(c) the conduct engaged
in by the convicted person or constituting the offence would not, at the time
the application is considered, constitute an offence under the law of the
State.
(7) Despite the fact that a conviction for a prescribed public decency
offence may be spent under section 8, the qualified magistrate may make an
order under
subsection (6)
that the conviction is spent under this section and, accordingly, the
order applies for the purposes of Schedule 1
clause a1(1)(c).
(8) In considering matters in
subsection (6)(c)
, the qualified magistrate must have regard to the following:
(a) whether any person involved in the conduct that was the subject of the
conviction did or did not consent to the conduct;
(b) the ages and respective ages of any persons involved in the conduct
that was the subject of the conviction;
(c) any other matter the qualified magistrate reasonably considers
relevant in the circumstances.
9—Variation
of Schedule 1—Exclusions
(1) Schedule 1, clause a1(1)(b)—delete "8A" and
substitute:
8B
(2) Schedule 1, clause a1(1)—after paragraph (b) insert:
(c) does not apply in relation to a prescribed public decency offence in
relation to which an order has been made under section 8C, except as may be
prescribed by the regulations.
10—Variation
of Schedule 2—Provisions relating to proceedings before a qualified
magistrate
(1) Schedule 2, clause 1, definition of spent conviction
order—after "8A" insert:
, 8B or 8C
(2) Schedule 2—after clause 1 insert:
1A—Application for a spent conviction
order—designated sex-related offences and prescribed public decency
offences
(1) The following persons, in addition to a convicted person, may apply
for a spent conviction order to be made in respect of a conviction for a
designated sex-related offence or a prescribed public decency offence:
(a) if the convicted person is a person with a mental
incapacity—
(i) the convicted person's spouse or domestic partner; or
(ii) an adult who is a sibling or child of the convicted person;
or
(iii) a person appointed as a guardian of the convicted person;
or
(iv) any other person a qualified magistrate considers to be an
appropriate person to make an application in the circumstances of the particular
case;
(b) if the convicted person is deceased—
(i) the person who was the convicted person's spouse or domestic partner
at the time of death; or
(ii) an adult who is a sibling or child of the convicted person;
or
(iii) the executor or administrator of the convicted person's estate;
or
(iv) any other person a qualified magistrate considers to be an
appropriate person to make an application in the circumstances of the particular
case.
(2) For the purposes of this section, a person is, on a certain date, the
domestic partner of another if—
(a) the person is, on that date, in a registered relationship with the
other; or
(b) the person is, on that date, living with the other in a close personal
relationship.
(3) In this section—
close personal relationship means the relationship between
2 adult persons (whether or not related by family and irrespective of their
sex or gender identity) who live together as a couple on a genuine domestic
basis, but does not include a relationship where 1 of the persons provides
the other with domestic support or personal care (or both) for fee or reward, or
on behalf of some other person or an organisation of whatever kind;
mental incapacity means the inability of a person to look
after the person's own health, safety or welfare or to manage the person's own
affairs, as a result of—
(a) any damage to, or any illness, disorder, imperfect or delayed
development, impairment or deterioration of, the brain or mind; or
(b) any physical illness or condition that renders the person unable to
communicate the person's intentions or wishes in any manner
whatsoever;
registered relationship means a relationship that is
registered under the
Relationships
Register Act 2016
, and includes a corresponding law registered relationship under that
Act.
(3) Schedule 2, clause 4(3)—delete "applicant" and
substitute:
convicted person