This Act comes into force on a date to be appointed by the Governor-General by Order in Council.
Section 2: Criminal Records (Clean Slate) Act 2004 brought into force, on 29 November 2004, by the Criminal Records (Clean Slate) Act Commencement Order 2004 (SR 2004/377).
3-
Overview
(1)
This Act establishes a clean slate scheme to limit the effect of an individual's convictions in most circumstances (subject to certain exceptions set out in section 19) if the individual satisfies the relevant eligibility criteria.
(2)
If an individual satisfies the relevant eligibility criteria,—
(a)
he or she is deemed to have no criminal record for the purposes of any question asked of him or her about his or her criminal record; and
(b)
he or she has the right to have his or her criminal record concealed by government departments and law enforcement agencies that hold or have access to his or her criminal record.
(3)
A general overview of eligibility under the clean slate scheme is set out in diagrammatic form as follows:
4-
Interpretation
In this Act, unless the context otherwise requires,—
clean slate scheme means the scheme established by Part 2 under which an eligible individual—
(a)
is deemed to have no criminal record for the purposes of any question asked of him or her about his or her criminal record; and
(b)
has the right to have his or her criminal record concealed by government departments and law enforcement agencies that hold or have access to his or her criminal record
community-based sentence means—
(a)
a community-based sentence as defined in section 4(1) of the Sentencing Act 2002; and
(b)
a community-based sentence as defined in section 2(1) of the Criminal Justice Act 1985; and
(c)
a sentence of a similar kind to those referred to in paragraphs (a) and (b) (including, without limitation, a sentence of community care, a sentence of probation, or a sentence of residential periodic detention) imposed under an earlier corresponding enactment
conceal means to protect the criminal record or information about the criminal record of an eligible individual from disclosure to a person, body, or agency (including, without limitation, a government department or law enforcement agency) for which there is no lawful authority under this Act to disclose the criminal record or any information about the criminal record
conviction—
(a)
means a conviction entered by a court in New Zealand for an offence, including a conviction for a traffic offence; and
(b)
does not include a conviction entered by the Court Martial of New Zealand or a disciplinary officer under the Armed Forces Discipline Act 1971 or resulting from an appeal from a decision under that Act
criminal record means,—
(a)
in relation to a question asked of an individual, any—
(i)
charges laid against him or her that have resulted in conviction; and
(ii)
convictions entered against him or her; and
(iii)
sentences imposed on him or her; and
(iv)
orders imposed on him or her as a result of a conviction; and
(b)
in relation to a request for disclosure or an obligation to conceal,—
(i)
any official record (including, without limitation, an electronic record) that is kept by, or on behalf of, the Crown of—
(A)
charges that result in conviction; and
(B)
convictions entered (including, without limitation, any item on a list of previous convictions); and
(C)
sentences imposed (including, without limitation, any item on a list of previous sentences); and
(D)
orders imposed on an offender as a result of a conviction; but
(ii)
does not include details in a marriage certificate or civil union certificate of a conviction for bigamy recorded under section 60 of the Births, Deaths, Marriages, and Relationships Registration Act 1995 (or any corresponding provision of an earlier enactment) or section 62F of that Act and included in the certificate under regulations made under section 88(1)(b) of that Act
custodial sentence means a sentence of imprisonment imposed under the Sentencing Act 2002 or under any earlier corresponding enactment; and includes—
(a)
a sentence of corrective training; and
(b)
a sentence of preventive detention; and
(c)
a sentence of imprisonment served by way of home detention; and
(d)
a sentence of borstal training; and
(e)
a sentence of detention centre training; and
(f)
any other sentence that requires the full-time detention of an individual
eligible individual means an individual who is eligible to have the clean slate scheme apply to him or her under section 7(1) or as a consequence of an order made by a court under section 9, section 10, or section 12
individual means a natural person, other than a deceased natural person
law enforcement agency means—
(a)
an agency that holds or has access to information described in Schedule 5 of the Privacy Act 1993; and
(b)
the Department of Labour, the Inland Revenue Department, and the New Zealand Customs Service
non-custodial sentence includes, but is not limited to, a community-based sentence, a sentence of home detention, a sentence of a fine or reparation, a suspended sentence of imprisonment, and a specified order
offence means any act or omission for which a person may be punished under the Crimes Act 1961 or any other enactment, whether on conviction on indictment or on summary conviction
prison officer means a person who is an officer as defined in section 3(1) of the Corrections Act 2004
probation officer has the same meaning as in section 4(1) of the Sentencing Act 2002
registrar means a registrar of a District Court; and includes a deputy registrar of a District Court
rehabilitation period, in relation to an individual, means any period of not less than 7 consecutive years after the date on which the individual was last sentenced, or a specified order was last made, in which the individual has not been convicted of an offence
security officer has the same meaning as in section 3(1) of the Corrections Act 2004
sentence means a sentence imposed by a court in New Zealand for a conviction for an offence
specified offence means any of the following offences:
(a)
an offence committed (whether before or after the commencement of the Crimes Amendment Act 2005) against any of the following provisions of the Crimes Act 1961:
(i)
section 130 (incest):
(ii)
section 131B(1) (meeting a young person under 16 following sexual grooming, etc):
(iii)
section 144C (organising or promoting child sex tours):
(iv)
section 204A (female genital mutilation):
(v)
section 204B (further offences relating to female genital mutilation):
(b)
an offence committed after the commencement of the Crimes Amendment Act 2005 against any of the following provisions of the Crimes Act 1961:
(i)
section 131 (sexual conduct with a dependent family member):
(ii)
section 132 (sexual conduct with a child under 12):
(iii)
section 134 (sexual conduct with a young person under 16):
(iv)
section 138 (sexual exploitation of a person with a significant impairment):
(v)
section 144A (sexual conduct with children and young people outside New Zealand):
(c)
an offence committed before the commencement of the Crimes Amendment Act 2005 against any of the following provisions of the Crimes Act 1961:
(i)
section 131 (sexual intercourse with a girl under care or protection):
(ii)
section 132 (sexual intercourse with a girl under 12):
(iii)
section 133 (indecency with a girl under 12):
(iv)
section 134 (sexual intercourse or indecency with a girl between 12 and 16):
(v)
section 138 (sexual intercourse with a severely subnormal woman or girl):
(vi)
section 139 (indecent act between a woman and a girl):
(vii)
section 140 (indecency with a boy under 12):
(viii)
section 140A (indecency with a boy between 12 and 16):
(ix)
section 142 (anal intercourse):
(x)
section 144A (sexual conduct with children outside New Zealand):
(d)
an offence against any of the following provisions of the Crimes Act 1908:
(i)
section 153 (unnatural offence):
(ii)
section 154 (attempt to commit unnatural offence):
(iii)
section 155 (incest):
(iv)
section 208 (indecent assault):
(v)
section 211 (rape):
(vi)
section 213 (attempt to commit rape):
(vii)
section 214 (defiling children under 12):
(viii)
section 215 (attempting to defile a child under 12):
(ix)
section 216 (defiling girls between 12 and 16):
(x)
section 217 (defiling idiot or imbecile woman or girl):
(xi)
section 218 (procuring defilement of girls):
(e)
an attempt to commit an offence against a provision listed in any of paragraphs (a) to (d), if—
(i)
the offence is not itself specified as an attempt; and
(ii)
the provision does not provide that the offence may be completed on an attempt:
(f)
a conspiracy to commit an offence against a provision listed in any of paragraphs (a) to (d):
(g)
being an accessory after the fact in relation to an offence against a provision listed in any of paragraphs (a) to (d)
specified order means—
(a)
a direction made by a court in New Zealand, as a result of a conviction for an offence, that an offender be convicted and discharged under—
(i)
section 108 of the Sentencing Act 2002; or
(ii)
section 20 of the Criminal Justice Act 1985; or
(iii)
section 347 of the Crimes Act 1961; or
(iv)
section 42(3) of the Criminal Justice Act 1954; or
(v)
section 18(1)(b) of the Offenders Probation Act 1920; or
(vi)
a corresponding provision in any other enactment; or
(b)
an order made by a court in New Zealand, as a result of a conviction for an offence, that an offender appear for sentence if called on to do so under—
(i)
section 110 of the Sentencing Act 2002; or
(ii)
section 21 of the Criminal Justice Act 1985; or
(iii)
section 41 of the Criminal Justice Act 1954; or
(iv)
section 92(1)(b) of the Justices of the Peace Act 1927; or
(v)
a corresponding provision in any other enactment; or
(c)
an order made by a court in New Zealand under section 112 of the Sentencing Act 2002 or section 28A of the Criminal Justice Act 1985, as a result of a conviction for an offence and instead of passing sentence, that an offender must not associate with a person or class of persons; or
(d)
an order made by a court in New Zealand under section 124 of the Sentencing Act 2002 or section 83 of the Criminal Justice Act 1985, as a result of a conviction for an offence referred to in those sections and instead of passing sentence, that an offender be disqualified from holding or obtaining a driver licence; or
(e)
an order made by a court in New Zealand under section 128 of the Sentencing Act 2002 or section 84 of the Criminal Justice Act 1985, as a result of a conviction for an offence referred to in those sections and instead of passing sentence, that an offender's motor vehicle be confiscated; or
(f)
an order made by a court in New Zealand under any other enactment as a result of a conviction for an offence and instead of imposing a sentence
traffic offence includes—
(a)
any offence against the Land Transport Act 1998, the Transport Act 1962, the Transport Act 1949, the Motor Vehicles Act 1924, the Motor Regulation Act 1908, or against any regulation, rule, or bylaw made under any of those Acts; and
(b)
any offence against any regulation, rule, or bylaw made under any other Act if the offence relates to the use of vehicles or parking places or transport stations
use in relation to a criminal record, means to make a decision in relation to the record, or take any action in reliance on the record.
Section 4 conviction paragraph (b): substituted, on 1 July 2009, by section 81 of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).
Section 4 criminal record paragraph (b)(ii): amended, on 24 January 2009, by section 47 of the Births, Deaths, Marriages, and Relationships Registration Amendment Act 2008 (2008 No 48).
Section 4 criminal record paragraph (b)(ii): amended, on 26 April 2005, by section 7 of the Relationships (Statutory References) Act 2005 (2005 No 3).
Section 4 non-custodial sentence: amended, on 1 October 2007, by section 58 of the Sentencing Amendment Act 2007 (2007 No 27).
Section 4 prison officer: amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).
Section 4 security officer: amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).
Section 4 specified offence: substituted, on 20 May 2005, by section 10 of the Crimes Amendment Act 2005 (2005 No 41).
The clean slate scheme applies to every question asked about, and every request made for the disclosure of, an eligible individual's criminal record or information about an eligible individual's criminal record whether asked or made on or after the commencement of this Act.
(2)
The clean slate scheme applies—
(a)
to all sentences, whether imposed before or on or after the commencement of this Act; and
(b)
to all specified orders, whether made before or on or after the commencement of this Act.
7-
Who is eligible under clean slate scheme
(1)
An individual is eligible under the clean slate scheme if—
(a)
he or she has completed a rehabilitation period since the date on which a sentence was last imposed, or a specified order was last made, as a result of a conviction for an offence, or he or she is an individual in relation to whom an order has been made under section 9 or section 10(2); and
(b)
no custodial sentence has ever been imposed on him or her; and
(c)
no order has ever been made in relation to him or her under section 34(1)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, section 118 of the Criminal Justice Act 1985, or section 39J of the Criminal Justice Act 1954 (being an order imposed, instead of passing sentence, that the offender be treated or cared for in a manner that the offender's mental impairment requires, either in the offender's interest, or for the safety of the public, or for the safety of a person or class of person); and
(d)
he or she has not been convicted of a specified offence; and
(e)
in the case of a court having imposed a sentence of a fine or reparation on the individual, the amount owing has been paid in full or has been deemed to have been remitted; and
(f)
in the case of a court having ordered the individual to pay costs or compensation under section 106, section 108, or section 110 of the Sentencing Act 2002 (or a corresponding provision of an earlier enactment), the amount owing has been paid in full or has been deemed to have been remitted; and
(g)
no order has ever been made disqualifying him or her from holding or obtaining a driver licence under section 65 of the Land Transport Act 1998 or a driver's licence under section 30A of the Transport Act 1962.
(2)
An individual in relation to whom a disqualification order has been made under either of the sections referred to in subsection (1)(g) does not become eligible to have the clean slate scheme apply to him or her as a consequence of the Director removing, or having removed, the disqualification under section 100 of the Land Transport Act 1998 or section 30C of the Transport Act 1962.
If, at any time after becoming an eligible individual (either under section 7(1) or as a consequence of an order made by the court under section 9, section 10, or section 12), an eligible individual is convicted of an offence, he or she is no longer an eligible individual.
(2)
An individual referred to in subsection (1) again becomes an eligible individual if he or she—
(a)
completes a rehabilitation period beginning on the day after the date on which he or she was sentenced for, or the specified order was made in relation to, that conviction or is an individual in relation to whom an order has been made under section 9 or section 10(2); and
(b)
is otherwise eligible under section 7(1) to have the clean slate scheme apply to him or her.
9-
Individual may apply to District Court for order that rehabilitation period need not be completed
(1)
An individual who is otherwise eligible under section 7(1) may make an application to a District Court for an order under subsection (2) if—
(a)
the last sentence imposed on the individual was a non-custodial sentence as a result of a conviction for an offence; and
(b)
that offence has subsequently been abolished and the act that constituted the abolished offence no longer constitutes an offence; and
(c)
he or she is no longer subject to the non-custodial sentence.
(2)
If an application is made to a District Court under subsection (1), a registrar must make an order that an individual need not complete a rehabilitation period for the purposes of section 7(1)(a) if the applicant provides evidence of the matters in subsection (1)(a) to (c).
10-
Individual may apply to District Court for order that rehabilitation period need not be completed or conviction be disregarded
(1)
An individual who is otherwise eligible under section 7(1) may apply to a District Court for an order under subsection (2) if—
(a)
the last sentence imposed on the individual was a custodial sentence as a result of a conviction for an offence; and
(b)
that offence has subsequently been abolished and the act that constituted the abolished offence no longer constitutes an offence; and
(c)
he or she is no longer subject to the custodial sentence.
(2)
The court may, if satisfied of the matters in subsection (1)(a) to (c), make an order—
(a)
that the individual need not complete a rehabilitation period for the purposes of section 7(1)(a); and
(b)
that the custodial sentence for the offence must be disregarded for the purposes of section 7(1)(b).
(3)
An individual who is otherwise eligible under section 7(1) may make an application to a District Court for an order under subsection (4) if a court imposed a non-custodial sentence on the offender for a conviction for a specified offence.
(4)
The court may order that the conviction for the specified offence must be disregarded for the purposes of section 7(1)(d).
(5)
In considering an application under this section, a court must balance the interests of individuals in concealing their criminal records against the wider public interest in the safety of the community (recognising that an awareness of an individual's previous convictions is appropriate in certain cases).
(6)
Subject to any rules of court, a court may call for and receive as evidence any statement, document, information, matter, or thing that, in the court's opinion, may assist it to deal effectually with the application.
(7)
On an application under subsection (1) or subsection (3), the court must either make the relevant order under subsection (2) or subsection (4) or decline to do so.
(8)
A District Court may transfer an application under this section to the High Court if it considers that it is appropriate to do so.
