Barbara Buckett and Associates Barristors and Solicitors

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'clean slate' law

Eligibility
Exceptions
Effect on the individual
Effect on the employer
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The Criminal Records (Clean Slate Act) 2004 came into force on 29 November. This now means that people with minor convictions and that meet certain criteria have the right to have their criminal history concealed. It is estimated that the Act will apply to half a million New Zealanders and therefore important for both employer and employee to be aware of their rights and responsibilities under the Act. Barbara Buckett & Associates summarise the key points of the new legislation for you.

Eligibility

In order to be eligible for a clean slate the individual must have:

not been convicted within the last seven years
never received a custodial sentence. This includes:
- a sentence if corrective training
- a sentence of preventive detention
- a sentence of imprisonment served by way of home detention
- a sentence of borstal training
- a sentence of detention centre training
- any other sentence that requires full time detention (for example an order by a Court following a criminal case to be detained in a hospital due to a mental condition, instead of being sentenced)
not have been convicted of a "specified offence", which includes among other things, sexual offending against children and young people or the mentally impaired and includes an attempt, conspiracy and being an accessory to committing a specified offence
paid in full any fine, reparation or costs ordered by the Court in a criminal case
never been indefinitely disqualified from driving under section 65 land Transport Act 1998 or earlier equivalent provision.

Exceptions

There are necessarily a number of exceptions. An individual eligible for the clean slate must disclose their criminal record if any of the following apply:

1. Information about the individual's criminal record is necessary for:

the investigation or prosecution by a law enforcement agency or corresponding overseas law enforcement agency or body.
the administration of sentences or the management of remand inmates by a law enforcement agency
the exercise of security-related functions of the New Zealand Security Intelligence Service

2. The individual's criminal record is relevant to any criminal or civil proceedings before a court or tribunal (including sentencing) or proceedings before the New Zealand Parole Board

3. The individual has made an application of any kind under the Arms Act 1983 and a member of the police is considering whether that individual is a fit and proper person for the purposes of that application.

4. The individual has made an application for employment in a "safety sensitive area such as:

a position of national security
a Judge, Justice of the Peace or Community Magistrate
a member of the police, prison officer, probation officer or security officer

5. The individual has made an application to act in a role predominantly involving the care and protection of, but not predominantly involving the delivery of education to, a child or young person (for example a foster parent or caregiver of children or young persons)

6. Information about the individual's criminal record is relevant to an investigation in relation to the ill-treatment or neglect of a child or young person

7. Information about the individual's criminal record is relevant to the undertaking of research approved by a government department or law enforcement agency that requires access to criminal history information

Effect on the individual

If an individual is deemed eligible, he or she is deemed to have no criminal record for the purposes of any question asked of them about their criminal history. However the Act does not authorise such an individual to state they have no criminal record if they are outside New Zealand. This includes an instance where he or she is in New Zealand but is answering a question in relation to the law of another country (such as an application form for a visa or other immigration material). The weight that is given to the conviction will be at the discretion of the country in question.

Effect on the employer

Employers should be aware of their responsibilities under the new act. When recruiting for a position in a "safety sensitive" position as outlined above, the request for disclosure of criminal history in the application form must explicitly state that all convictions must be disclosed, regardless of whether you are eligible for a "clean slate". It is equally important that other professions also adopt new wording on their application forms to comply with the new Act. Non sensitive job application forms should state:
Have you ever been convicted of any criminal offence (other than a minor traffic offence)?
If yes please list criminal convictions, except those cases where our asking you to declare them would breach the Criminal Records (Clean Slate) Act 2004.

It will be an offence for any employer of other person such as a landlord, insurance company or bank to demand that an individual disclose their criminal history in breach of the Act. Such an offence can result in a maximum $10, 000 fine.

If you would like to discuss any issues raised in this article or would like further advice please contact us at Barbara Buckett and Associates or visit our discussion group.

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Disclaimer: This article is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication. Please refer to our Legal Notices.