Exploring the Clean Slate Act: How does the ‘Second Chance’ Scheme work?

26 Jul

2024

Insights

How does the Act work?

New Zealand's criminal justice system recognises that people deserve a second chance. The Criminal Records (Clean Slate) Act 2004 offers this chance for individuals convicted of low-level 'petty crimes'. While a conviction can never be wiped completely, the scheme allows an individual the right to conceal and deny the existence of the conviction after seven years of' good behaviour'.

In practice, this means that any police or criminal record test will come back 'clean'. If a prospective employer (or anyone else) questions whether an individual has a criminal record they are entitled to deny these conviction/s.

The following are the key requirements (stipulated in s 7) to be eligible for the scheme:

Good behaviour for seven years (no new convictions).
Fully paid any fine (or other cost) ordered in a criminal case.
Never been:
- sentenced to a custodial sentence (i. e prison, home detention etc.);
- convicted of a 'specified' sexual offence;
- indefinitely disqualified from driving; or
- held in hospital (due to mental condition) instead of being sentenced.

A few exceptions exist to individuals who would otherwise beeligible which are provided under s 19. Generally,these are for certain positions where a 'good character' assessment is required,the role requires working with children, or for where the convictions may be relevant to an investigation.

Recent cases of interest

Flexibility to help reformed individuals 'turn over a new leaf'

The decision of M v New Zealand Police illustrates the flexibility that courts can offer in relation to the scheme. Here, the individual had been convicted of 11 petty crime' offences (including shoplifting, graffiti and cannabis possession,amongst others) spanning the period of 2013 to 2018. The individual received an adult ADHD diagnosis, which allowed him to turn his life around and obtain a university degree. However, in 2023 his convictions made securing a job in his chosen field (accounting) extremely difficult.

The Court was satisfied that there was a real and appreciable risk that his criminal conviction stood in the way of M obtaining long-term steady employment. It held that the consequences of the defendant's convictions, in view of this new evidence (including his ADHD diagnosis), were out of all proportion to the offending.

Intersection between the scheme and entry requirements for professional bodies

The case of Reid v New Zealand Law Society shows that eligibility for the scheme will not necessarily mean you meet a professional body's 'good character' requirements.

Davina Murray (a former criminal barrister) was convicted and struck off after infamously giving prisoner Liam Reid (a convicted murderer and rapist who she later married) an iPhone, cigarettes, and a lighter in prison. Seven years later she was eligible for the scheme and argued this also entitled her to regain her practising certificate as a lawyer. Her application to regain her practicing certificate was declined by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. She then appealed that decision to the High Court.

Rejecting her appeal, Justice Muir considered the scheme was of low importance and did not apply in this context. His Honour referred with endorsement to the Tribunal's view that s 19(3)(b) of the Act applied, which is an exception to the blanket effect of the Act. It provides that an individual must disclose their crimes where they are relevant to any criminal or civil proceedings before a court of tribunal.

The Judge also agreed with the Tribunal that what was important here was Ms Murray's lack of remorse and understanding of the implications of her wrongdoing; a consequence of which was a slew of additional rules and processes for lawyers visiting prisoners.

Conversely the decision of New Zealand Law Society v Stanley shows that the Clean Slate scheme can be a relevant factor in determining 'good character' in the context of the Law Society's 'fit and proper person' test.

Mr Stanley had numerous convictions for drink driving spanning four decades (the latest occurring within seven years). On applying to be admitted as a barrister and solicitor, the New Zealand Law Society held that he had failed the fit and proper person test. Mr Stanley's convictions were not yet hidden by the scheme, and it was noted that criminal conduct was important in assessing character (regardless of the scheme).

The Court overturned the decision of the Law Society. It determined that Mr Stanley should be admitted as a lawyer, and the fact that his conduct would be hidden under the scheme within a year was a relevant factor in reaching that conclusion.

Resolving the contradiction

What can be made of these two seemingly contradictory decisions? Is an individual's criminal history relevant to their admission as a barrister and solicitor or isn't it? The Act appears to be quite clear that the criminal history of a candidate (to the extent it can be concealed by the scheme) cannot be a relevant factor when deciding whether to accept or reject their initial application for admission to the bar. Reid v New Zealand Law Society would suggest that changes, however, if the candidate subsequently loses their practicing certificate and then seeks to reapply.

This pivot could be justified on the basis that where the criminal conduct is connected to the loss of the practicing certificate itis relevant to that person's fitness to practice going forward. In all other cases (say, where offending is not connected to the loss of the practicing certificate) the criminal history should remain, as the scheme expects, irrelevant and therefore concealable. It is unclear how this would work in practice as the Act otherwise is "all or nothing" in terms of its operation.

What's next?

A Members Bill proposed to Parliament by MP Duncan Webb signals a potential expansion of the scope of the scheme.

Currently, the scheme deems some types of offending (mostly sexual offending) and those who have completed custodial sentences to be ineligible. However, the proposed Bill would allow this type of ineligible offending to become eligible after ten years. The purpose of this change is to allow these people the opportunity to re-enter work and society to create better outcomes for them and their families. However, is this expanding the scope too far?

The Bill was proposed on 30 June 2022 and was brought to Parliament for its second reading on 14 February 2023.