PLEASE NOTE: This article was published on the date listed below and may now contain information that has since been updated or changed. We have retained this article as it may still contain helpful comments. However, we advise you to make an appointment to see us for the most up to date information on this topic.
Clean Slate Act 2004
On 29 November 2004, the Criminal Records (Clean Slate) Act 2004 (“the Act”) came into effect. The Act enables those with criminal convictions and who meet certain eligibility criteria to have their criminal records wiped clean and deny the existence of their convictions.
In order to qualify under the clean slate scheme, an individual must meet all of the following criteria:
- No convictions within the last 7 years.
- Never been sentenced to a custodial sentence, such as imprisonment, corrective training or borstal training.
- Never been ordered by a Court to be detained in a hospital due to their mental condition, instead of being sentenced.
- Not being convicted of a “specified offence” (which are mostly offences of a sexual nature).
- Paid in full any fine, reparation or costs ordered by the Court.
- Not being disqualified indefinitely from driving.
Individuals who meet the above criteria will automatically have their convictions concealed.
Exceptions to the Clean Slate Scheme
There are limited exceptions under the Act. In particular, the Scheme does not apply:
- Where an eligible individual has made an application for employment in a position that involves the national security of New Zealand, or as a Judge, Justice of Peace, Community Magistrate, member of the Police, Prison Officer, Probation Officer or Security Officer.
- Where disclosure of the individual’s record is required as part of the investigation and prosecution of further offences.
- Where the eligible individual’s criminal record is relevant to any criminal or civil proceedings before a Court or Tribunal.
- In relation to foreign countries, such as where an individual’s criminal record is required to obtain a Visa to travel to a foreign country.
Implications for Employers
The Act applies to employment and any other situations where an individual is asked about their criminal record, such as applying for insurance, mortgages and tenancies. It enables an individual who meets the eligibility criteria to answer a question asked about their convictions or criminal record by denying that they have a criminal record. Furthermore, it will be an offence for any person without lawful authority to require or request that the individual disclose their criminal record when they are lawfully entitled not to do so. The maximum penalty for the offence is a fine not exceeding $10,000.00.
In our view, the Act will have serious implications for employers. Except in the limited situations referred to above, prospective employees who are eligible under the scheme will be able to deny the existence of their criminal record. This would include any of the following examples:
- Employing a Solicitor, Accountant, Bank Teller or other person in a position of trust who had a conviction for theft or fraud.
- Employing a taxi, bus or truck driver who had convictions for drink driving, dangerous driving etc.
In more serious cases, the person will be sentenced to a term of imprisonment or be disqualified from driving (if applicable) and therefore be ineligible under the Act. However there may well be situations such as those referred to above where the convictions do not result in a sentence of imprisonment but nevertheless might materially affect an employer’s decision to employee the individual.
Advice for Employers
As mentioned above, it is an offence to require an employee to disclose convictions when they are entitled to deny them. Therefore, whilst the provisions of the Act cannot be avoided, there are other steps that employers can take to protect themselves. The importance of undertaking proper reference checks can not be over-emphasized. Employers can not rely on prospective employees disclosing all relevant material. Indeed, as a result of the Act, prospective employees are given the right to conceal such information.
Employers would be well advised to ensure that their pre-employment procedures are robust and comply with the Act and other relevant legislation, such as the Human Rights Act 1993 and the Employment Relations Act 2000. We can assist in this regard.