The Private Life of Guilty People: New Laws on Clean State Convictions and Prisoners' Claims – A Privacy Perspective

1. Tim McBride Barrister & Legal Consultant The Private Life of Guilty People: New Laws on Clean State Convictions and Prisoners' Claims – A Privacy Perspective

2. 2 Title of my address My background / perspective Focus Relevance to this forum

3. 3 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).

4. 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…

5. “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

6. 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).

7. 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

8. 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

9. 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.

10. 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)

11. continued Paid in full any fine, reparation, or costs, ordered by a court in a criminal case Never been indefinitely disqualified from driving

12. 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

13. 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)

14. 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

15. 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”.

16. 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

17. 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

18. 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)

19. 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

20. 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

21. 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)

22. 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’

23. 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))

24. Tim McBride Barrister & Legal Consultant timmcbride@xtra.co.nz Conclusion