Danielle Beston explains how the Clean Slate Act works and how it can help people move on from their past.

The Criminal Records (Clean Slate) Act applies to any questions asked about criminal records or requests for an individual’s criminal record processed on or after 29 November 2004. This legislation is designed to allow individuals with less serious convictions who have been conviction-free for at least seven years to put their past behind them. It enables eligible individuals to conceal convictions in most circumstances but there are some exceptions in which an individual’s convictions must continue to be disclosed.

The Act is an automatic scheme, so it is not necessary to apply for a ‘clean slate’. If you meet all of the criteria for concealing previous convictions, you are eligible to have your convictions concealed by the Ministry of Justice. Your convictions are entitled to be concealed if you continue to meet the applicable criteria. Those who do not meet all of the criteria will be ineligible for ‘clean slate’ purposes and will receive a criminal convictions report.

What are the criteria?

An individual must meet all of the criteria in Section 7 of the Act before all their convictions can be concealed. The general criteria for an individual to obtain the benefits of the ‘clean slate’ scheme are as follows:

a) no convictions within the past seven years

b) never been sentenced to a custodial sentence (eg, imprisonment, corrective training, borstal)

c) never been ordered by a court during a criminal case to be detained in a hospital due to his or her mental condition instead of being sentenced

d) never been convicted of a ‘specified offence’ as defined in Section 4 of the act

e) paid in full any fine, reparation or costs ordered by the court in a criminal case

f) never been indefinitely disqualified from driving under section 65 of the Land Transport Act 1998 or earlier equivalent provision.

Youth Court outcomes, infringements and overseas convictions are not ‘convictions’ under the Act so they will not be included when weighing up whether you qualify for a ‘clean slate’. Having a ‘clean slate’ is based on meeting the conditions set out above, so if you later break the conditions, you lose the right to a ‘clean slate’ until the conditions are met again.

Have my convictions been concealed?

If an individual is eligible under the scheme, then his or her convictions will be concealed automatically. Individuals can request a copy of their criminal record by applying online at justice.govt.nz.

If an individual’s convictions continue to be on their criminal record, this is because they do not meet the eligibility criteria. However, there are two situations where people who do not meet the criteria can apply to the court to have a conviction disregarded:

i) where there is a conviction for an offence that has been decriminalised

ii) where a non-custodial sentence was imposed for a ‘specified offence’.

In each of these cases, you should seek legal advice about whether you can make an application in these circumstances.

Exceptions

There are specific exceptions where a complete criminal record is required as detailed in Section 19 of the Act. Some examples of instances in which your convictions must continue to be disclosed include:

1) if you apply for certain types of employment (eg, a member of the police, prison or probation officer, national security positions, a judge or justice of the peace) or roles involving the care and protection of children, such a foster parents

2) investigation and prosecution of further offences

3) criminal or civil proceedings.

Where an ‘employment’ exception applies, the application form should explicitly state that all convictions must be disclosed, regardless of whether you are eligible for a ‘clean slate’ at the time. In these situations, all convictions must be disclosed on the application form and if your criminal record is disclosed by either the Ministry of Justice or the police, your complete criminal record will be disclosed. You should seek independent legal advice if you have any queries about whether a particular role fits within an exception to the legislation.

It is a fineable offence for any person, without lawful authority, to require or request that an individual disclose their criminal record when they are lawfully entitled not to. It is also a fineable offence to unlawfully disclose information required to be concealed.

Impact on overseas travel

New Zealand legislation cannot bind a foreign government, so the Act will have no impact on the border immigration disclosure requirements of overseas jurisdictions. When a foreign state requires disclosure of all criminal convictions, whether entitled to be concealed or not, all convictions will need to continue to be provided. The weight that is given to the convictions in relation to the immigration or visa application is at the discretion of the country in question.