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  • Sami Abbas

Injustice: How the Media is Sabotaging the Second Chance of Spent Convictions


Spent Convictions are a vital part of the criminal justice system. Typically, having a conviction on one's record can create significant hurdles in finding employment, as many employers require job applicants to submit a police clearance or National Police Certificate during the application process. A Spent Conviction is a court order that a criminal conviction is made "spent", which allows a person to legally declare that they have no conviction and therefore it won’t be disclosed when a person is asked about their criminal record or applies for a National Police Certificate.


Our law firm recently obtained a Spent Conviction for a young man. He was of good character (notwithstanding his mistake), the offence was relatively trivial, and he wanted to work in the mining industry. In fact, he was studying at university for a career in the resources industry. The Court determined that this young person deserved a second chance at a clean record and granted him a Spent Conviction. Within a couple of days, we received word that a journalist had published an article in the newspaper, and online, stating our client’s name, the type of the offence, the details of the offence, and the fact the court provided a Spent Conviction. In effect, the Spent Conviction became meaningless because any future employer could simply google search his name. Our client had no recourse to request the article be removed from the publisher’s website because the facts of the article were correct. It wasn’t defamation. The journalist took it upon themselves to “shame” our client with their article and deliberately negated the Court’s intention in granting the Spent Conviction.


What is a Spent Conviction?


Under section 45 of the Sentencing Act 1995 (WA), a court may grant a Spent Conviction at the time of sentencing if several criteria are met. Firstly, the offence must not be an excluded offence of a serious nature. Secondly, the court must be satisfied that it is appropriate to grant a spent conviction, based on the circumstances of the offence, the offender's character, and the impact of a conviction on the offender's future prospects. Finally, the court must consider the impact of the conviction on the offender's future prospects, including employment, travel, and other aspects of their life. If the court is satisfied that these criteria have been met, it may order that the conviction be recorded as a spent conviction.


A person can also be granted a Spent Conviction at the time they receive the sentence. If they do not receive a spent sentence when convicted they can apply to have a conviction spent after a period of time which is generally 10 years, plus the length of any term of imprisonment imposed for that offence. If you are convicted on another offence, the 10 year waiting period will restart from the time of the latest conviction. Some possession of cannabis offences only have a wait time of three years after the date of conviction.


If a person's conviction is for a minor offense heard in a Western Australia court, they may apply to the Commissioner of Police to have it spent. However, for more serious convictions, individuals must apply to a judge of the District Court to have the conviction declared spent.


In certain circumstances, an individual with a Spent Conviction may still have to disclose that they have spent convictions, these exceptions are contained within schedule 3 of the Spent Convictions Act 1988 (WA) and include situations when applying for certain jobs involving children or where person is being considered for appointment as a police officer or police auxiliary officer or Aboriginal police liaison officer under the Police Act 1892.


Essentially, a Spent Conviction order will allow a person to not be discriminated against due to their conviction. The purpose of which is to give people a second chance in society by not placing any stigma on them when they apply for employment, this allows people to be reintegrated into society and be rehabilitated, which, in turn, reduces re-offending rates. A criminal record causes great hardship on a person whether it’s seeking a job, renting a house, or travelling abroad, a Spent Conviction alleviates much of the hardships associated with having a criminal record, as it will no longer appear on your National Police Certificate.


If potential employers or others discriminate against you due to a conviction which has been spent, you may have grounds to lodge a complaint under the Equal Opportunity Act 1984 (WA). If the court grants a Spent Conviction, it is because they find the applicant to be of previous good character, and that the circumstances of the offending should not be used to prejudice them in the future. This is especially important for young people with their lives ahead of them.


What if we didn’t have Spent Convictions in WA?


Unlike Western Australia, Victoria did not have a Spent Conviction scheme until recently. In 2021 the Victorian Legislative Council passed the Spent Convictions Bill 2020 (Vic), which caused Victoria to become the last state in Australia to introduce a Spent Convictions scheme. Jedda Costa from the ABC wrote an article discussing the adverse effects that were caused due to the lack of a spent convictions scheme in Victoria.[1] In her article she interviews Naomi Murphy, an advocate in the Victorian Aboriginal justice space. Ms Murphy identified the struggles her community must deal with such as intergenerational trauma. Many people such as herself have encounters with the justice system at a young age. Ms Murphy among others, attempt to put their pasts behind them and take major steps in rehabilitation, however, due to Victoria not having a Spent Convictions scheme at the time she was hindered at every step, whether it was applying for a job, travelling overseas, or seeking housing due to her previous criminal record.


Spent Convictions schemes like Western Australia’s mean that minor offences won’t cast a dark shadow over people’s lives and allows them to fully contribute to society without paying for minor mistakes they have made in the past.



What’s the media got to do with it?


The idea behind Spent Convictions is that the penalty imposed by the Court should sometimes be enough of a punishment and that the imposition of a permanent mark against one’s name can be unjust. However, the effectiveness of this system is being undermined by the media's publication of articles that reveal details of spent convictions.


As stated previously, a Spent Conviction allows a person to be granted a second chance in terms of employment, renting a home, and living their day to day lives, however, media publications often publish articles which sabotage this whole process. When an individual's name is associated with a conviction in a news article, it completely undermines the point of having a spent conviction. A media article which is published about a person’s spent conviction is the opposite of the courts intentions and therefore robs a person of a chance of rehabilitation and a fresh start. It is well known that it is far easier to “google search” someone’s name than obtain a police clearance certificate.


It is important that journalists consider the moral and ethical the ramifications of publishing articles regarding individual’s Spent Convictions. Society must take steps in raising awareness and encouraging responsible reporting regarding the adverse effects of reporting on spent convictions. Journalists and media outlets must be educated in the purpose of spent convictions and how spent convictions alleviate the burdens of an individual. Additionally, we must address the trend within media outlets of utilising sensationalist headlines, or “clickbait” articles when reporting on stories of spent convictions, as these headlines often undermine the purpose of the spent conviction system. Is it really in the public interest to name and shame these young offenders, or does it just sell more media products? It may be time to consider putting in place laws which protect the privacy of those who receive spent convictions.


Conclusion


The Spent Conviction scheme in Western Australia is an important and vital aspect of the criminal justice system. Jurisdictions abroad such as the United Kingdom have already identified the detrimental effect media organisations may have when publishing information about spent convictions.


The United Kingdom’s Rehabilitation of Offenders Act 1974 criminalises the disclosure of Spent Convictions in defined circumstances, however it is generally not a criminal offence to report on a spent conviction, and there is no criminal penalty on journalists or media organisations to do so.


The United Kingdom’s press regulator, the Independent Press Standards Organisation (IPSO) has issued guidance to its members that any media organisation which reports Spent Convictions. The IPSO and the BBC have both issued statements on an individual’s right to privacy, however the BBC claims that an individual’s right to privacy is diminished where their behaviour is criminal, seriously anti-social or is in the public interest. Examples of the public interest by the BBC include:


• exposing or detecting crime

• exposing significantly anti-social behaviour

• exposing corruption or injustice

• disclosing significant incompetence or negligence


Additionally, the Criminal Justice System UK provides guidelines on publishing information about individual sentencing outcomes, and states: It may be contrary to the Rehabilitation of Offenders Act 1974 to publish information about Spent Convictions. Unfortunately, these guidelines still give journalists the discretion as to whether they consider it appropriate to name and shame in their publications. One could easily argue that the criteria of "exposing crime" applies to every single criminal offence that is made "spent" by the Court.


The struggle against media organisations has been ongoing in the United Kingdom. In 2014 the newspaper publisher Newsquest was not forced to remove an old article which was regarding a conviction which was considered spent in accordance with the Rehabilitation of Offenders Act 1974. The Information Commissioner's Office rejected a complaint by a man named in Newsquest's article. The Information Commissioner’s Office referred to section 32 of the Data Protection Act 1998 in their decision, stating that media organisations can justify the processing of personal data for a journalistic purpose under certain circumstances.


Put simply, if the Court determines that an offender deserves to be spared the negative consequences of a criminal record, then it is not appropriate for vigilante journalists to name and shame at their discretion. If a Spent Conviction goes against the public interest, it is incumbent on the prosecution to appeal that decision. Even the Australian taxpayer funded ABC reports on Spent Conviction cases, while simultaneously arguing that Spent Conviction laws are important. They publish the details, names and even photographs of the people the Court deem to deserve a clean slate. These articles remain online and easily searchable indefinitely.


This contradictory system which allows Magistrates' to be blatantly undermined by journalists needs an overhaul. If we are going to have a Spent Convictions scheme, we should certainly legislate properly to give these people the second chance that was intended and promised to them under the law.

[1] Jedda Costa, Spent Convictions scheme passes Victoria’s upper house (Web Page, ABC) < https://www.abc.net.au/news/2021-03-19/victoria-becomes-last-state-to-approve-spent-convictions-scheme/13191800>.

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