It allows employees, if they meet all of the requirements in the legislation, to not disclose all of their convictions to perspective employers.
This Act has certain requirements, all of which have to be met before the employee can use the “clean slate” scheme right. These are that the employee has
• no convictions in the last 7 years and
• never been sentenced to a custodial sentence such as imprisonment, corrective training or borstal and
• never, instead of being sentenced, been ordered to be detained in hospital because of a mental condition and
• not been convicted of a “specified offence”, which includes certain sexual offences such as rape, incest and indecent assault and
• paid all Court ordered fines, costs, reparation or compensation and
• not been disqualified from holding or obtaining a drivers licence for repeat drug or alcohol offending.
If all these requirements are met, then anyone, if asked in a pre-employment situation if they have any criminal convictions, can answer no and they do not have to disclose their criminal record.
Nevertheless, there are exceptions to this rule, when the employee must state that they do have a criminal record and disclose what this is. These include if the employee is applying for employment
• as a prison, probation, security officer or a member of the police or
• as a Judge, Justice of the Peace or Community Magistrate or
• in an area that concerns national security.
Under this legislation, the ability to claim the “clean slate” scheme right is not something that the employee has to apply for. If all the requirements are met then it automatically applies.
To know if they qualify, people can request a copy of their criminal record from the Ministry of Justice. If their previous convictions are concealed, then they do not have to disclose them but if they still appear, then they are not eligible and they do still need to disclose them to perspective employers.
Also, overseas convictions must still be declared.
Case law that is still likely to apply under the Act demonstrates that if the employee does not meet the “clean slate” criteria and they then fail to disclose their previous convictions, it is likely that they can be dismissed for such action.
The case of Tai v Robinson T/A Coronation Lodge 17/3/04, Shaw J WC4/04, decided before the Act came into force, found that when the perspective employee answered no to their employer falsely when they were asked if they had any criminal convictions, that this meant the employer was induced into employing them and their dismissal for this was just when it was found out.
It is likely that the outcome would be the same if the employee did not qualify under the “clean slate” rule, but otherwise they could answer no could not then be dismissed if the employer found out that they did have any convictions. In fact, it is an offence for someone, without lawful authority, to request that a perspective employee disclose their criminal record when they are not lawfully entitled to and if this is done, the maximum penalty is a fine not exceeding $10,000.
However, it is likely that questions about pending Court hearings, diversion or speeding infringements may be allowed as the Act only covers convictions.
Further information on the Act and its effects can be found on the Ministry of Justice website (http://www.justice.govt.nz/privacy/clean-slate.html).
Miriam Sinclair is Preston Russell Law’s 2004-05 summer law clerk.
