One of the most common concerns defendants have in criminal cases is the impact of a conviction on their future, including their current or future employment and travel plans.
The following is a basic outline of the rules when it comes to criminal records, the impact of court and media reporting and whether we all deserve a right to be forgotten.
When most people think of a ‘criminal record’, they are referring to the information likely to be disclosed in a National Police Check (NPC) or a Working with Children Check (WCC).
NPCs may be required for certain forms of employment, such as government work, as well as when applying for certain visas. WCCs are required for most forms of work which involve children.
Generally, any “disclosable court outcome” – including findings of guilt and outstanding criminal charges – can appear on an NPC or WCC.
States and Territories differ in the extent to which they disclose information.
As we have previously discussed, the following outcomes are normally disclosable in New South Wales:
- “unspent” convictions for criminal offences (including ‘major traffic offences’ such as drink driving and driving whilst disqualified),
- unexpired good behaviour bonds for findings of guilt with no conviction (eg ‘section 10 bonds’ (now conditional release order without conviction) which have not finished,
- outstanding criminal charges, and
- unfinalised criminal court proceedings.
All Australian jurisdictions except Victoria also have “spent convictions schemes” which allow for convictions for eligible minor offences to no longer appears on a check after a certain period of time.
Law and Media Reports
Information regarding your criminal case is unlikely to be restricted to a formal record check.
Case names are normally listed on websites such as the online court registry, which are freely accessible.
And many cases are also ‘reported’, which means the judgments are published in law reports as well as online.
Some cases attract media attention and, provided the news reports are truthful, there is little a defendant can do to get rid of them, unless there is a suppression order or non-publication order, or the defendant is under the age of 18.
Section15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits the publication or broadcast of the names of children involved as offenders, witnesses, or brothers and sisters of child victims in criminal proceedings. This applies even after a person has been convicted.
Unfortunately, unless a report violates a non-publication order, or is defamatory, there is very little that can be done in regard to media stories using your name.
Under APP 13 of the Australian Privacy Principles, Australian entities must take reasonable steps to confirm and correct any personal information if it is satisfied the information is:
- Misleading, or
- An individual requests the entity correct the information.
However, media reporting has a habit of being misleading and inaccurate in ways that that make successful requests to take down information difficult.
The nature of the internet can also make issuing take down notices akin to a game of Whac-A-Mole, with information duplicated across several websites making it almost impossible to purge damaging information.
The Right to be Forgotten
Given the harmful impact of law and media reports, some people have called for a ‘right to be forgotten’ to allow information to be taken down from websites and de-indexed from search engines after a certain time has passed.
The right to be forgotten is enshrined in Article 17 of the General Data Protection Regulation of the European Union and provides a right to request certain personal data be removed.
In the 2009 case of Google Spain v AEPD and Mario Costeja Gonzalez, the plaintiff (Gonzalez) applied to the European Court of Justice (ECJ) to order Google to remove records of social security debts that were published in a Spanish newspaper in the late 90s.
The ECJ found that members of the European Union had the right to ask search engines to remove links to their personal information, is the information was inadequate, irrelevant, excessive or inaccurate.
To comply with the ruling, Google has created an online form for EU citizens to request information be removed.
The Australian Law Reform Commission considered recommending a right to be forgotten in 2014, however due to a number of criticisms from media groups, this was dropped.
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Jarryd Bartle practised as a criminal defence lawyer before moving on to specialist consultancy. He has written for several publications including The Guardian, VICE and The Conversation, covering a range of criminal justice-related topics.