Worth Richard: Criminal Records (Clean Slate) Bill — Third Reading 
Worth Richard: Criminal Records (Clean Slate) Bill — Third Reading 
[Volume:617;Page:12773] 
RICHARD WORTH (National—Epsom) 
: 
 This is truly iniquitous legislation which was poorly explained by the Minister and—in the rapid-fire statement that he read line by line and word by word without appropriate consideration of its impact. It is called the Criminal Records (Clean Slate) Bill and it will become the Criminal Records (Clean Slate) Act. That is the first point that I would like to make—that the title is a misnaming of the consequences of this legislation. If it were truly a clean slate then the convictions of the particular offender would be expunged but that is not to be the impact of the legislation at all. The convictions are simply to be concealed for limited purposes and will be able to spring up again. 
National judges that this legislation reeks of political correctness. What an irony it is that it is the so-called centrepiece of the Government’s criminal rehabilitation strategy. If this is as good as it gets then it certainly does not get very good at all. 
 This legislation provides that individuals will be eligible to have their criminal records concealed under the clean slate scheme if they have not been sentenced for offending in the past 7 years and have no criminal proceedings pending. It is certainly to be contemplated that a particular offender may have continued to offend in that 7-year period but simply not have been caught. That is the first element. Second the scheme does not apply if a custodial sentence has been imposed. We all know that quite major offences often are not punished by imprisonment. One can rack up a string of perhaps 20 burglaries or a raft of dishonesty offences without going to jail. That is clearly a weakness in the legislation if it has a planned remedial purpose. Third there have to be no convictions for nominated sexual offences. Finally all the fines and reparations have to be paid. 
What are National’s objections to this legislation? A very simple one is that it can be quite easily subverted. That is because convictions may become disclosed in a number of ways. This legislation does not outlaw the possibility of records being maintained in private and media archives. I bet we will see a new business spring up in respect of the maintenance of criminal records particularly for theft and dishonesty offences. This sort of information is incredibly relevant to employers in the context of both current employment relationships and interviewing people for positions of possible trust. For example it is hugely relevant for a law firm seeking to employ a trust accountant to know whether the proposed employee has a criminal history—convictions for dishonesty. What would the Minister have us accept? The Minister would have us accept presumably that that is not relevant information. He would have us accept that political correctness is sufficient justification for that material to be concealed. So one way in which this legislation can be subverted is by records maintained in private or media archives. 
The second possibility is that there may be inadvertent disclosure of the conviction—or perhaps the offender may consent to its being made available. The third area that will be productive of huge misunderstanding is that when individuals are at a foreign border—for example seeking to enter the United States—and are required to fill in the appropriate form or are being questioned by the officer at the border they must give an honest answer. If asked whether they have a criminal record they have to say whether they do or whether they do not. The clean slate provisions will avail them nothing. Finally of course which the Minister very briefly touched on in his rapid-fire speech to the House there are particular types of employment where a clean slate is revealed to show the murkiness of an offender’s past. 
I sought unsuccessfully in the progress of the bill to tighten up some of those provisions and to seek that more exceptions be created to the regime. Let me give two examples of where I suggest there should be greater restrictions. First is the case of people who have convictions and who want to teach. Why should they not be required to disclose to the Teachers Council that they have such convictions? Surely it is relevant in the school setting to know that a person has convictions for offences—let us say assault—that should be taken into account when considering whether that person should gain employment with the State. Here is another illustration: a person applies for employment in a position that involves the exercise of fiduciary obligations or the handling of money or moneys’ worth. Surely in that class of case that conviction should be made known. 
Others have said—and the Government bridles at the proposition but it is true—that this legislation is a mandate to lie. Why should the State lend itself to that possibility? It is a mandate to lie because it is expressed on the face of the bill to be exactly that. Clause 11 “Effect of clean slate scheme on eligible individual” states in subclause (2): “An eligible individual may answer a question asked of him or her about his or her criminal record by stating that he or she has no criminal record.” Here it is quite simply: when a person with a raft of criminal convictions is asked: “Do you have a criminal record?” the State says that that person can say: “No no I have no criminal record.” Why should the State lend itself to this type of lie? Why should this legislation cut across the clear rules that have been established in the context of perjury and in the context of people who sign declarations under the Oaths and Declarations Act and allow people to say that they have no convictions when in fact they are convicted fraudsters? 
I urge members of the House to reflect on this legislation when voting on its third reading. I indicate on behalf of National that not only are we implacably opposed to this legislation but we will also review it when we come to power midway through 2005 and it may very well be scrapped. What should be done? National states in its minority report that greater use should be made of diversion. These very minor events that touch young people’s lives should not result in conviction. The way to deal with this issue is by improving the diversion process. 
Diversion of course is a highly flexible remedy. We all know that. But I suggest there would be merit in codifying diversion. Too often perhaps white middle-class kids secure diversion whereas other people in different socio-economic circumstances might not. We need to look hard at diversion; without losing its flexibility it should be formalised. I also accept that there are very limited cases where a person who has a minor conviction might suffer a penalty out of all proportion to the early minor offending. That is why National proposes not only the formalising of diversion but also where an injustice has been worked the provision of a one-off ability for a person to go to court and ask a District Court judge to sit in judgment on whether a conviction in a particular case should be set aside. There should not be this clean slating which is a Clayton’s fraud on the community but rather a case by case look at a particular person’s position.