Criminal Records (Clean Slate) Act 2004

Version as at 28 October 2021

Coat of Arms of New Zealand

Criminal Records (Clean Slate) Act 2004

Public Act
 
2004 No 36
Date of assent
 
16 May 2004
Commencement
 
see section 2
Note

The Parliamentary Counsel Office has made editorial and format changes to this version using the powers under subpart 2 of Part 3 of the Legislation Act 2019.

Note 4 at the end of this version provides a list of the amendments included in it.

This Act is administered by the Ministry of Justice.

 
1 Title

This Act is the Criminal Records (Clean Slate) Act 2004.

Part 1 Preliminary provisions

2 Commencement

(1)

This Act comes into force on a date to be appointed by the Governor-General by Order in Council.

(2)

An order under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

Legislation Act 2019 requirements for secondary legislation made under this section
PublicationPCO must publish it on the legislation website and notify it in the GazetteLA19 s 69(1)(c)
PresentationThe Minister must present it to the House of RepresentativesLA19 s 114, Sch 1 cl 32(1)(a)
DisallowanceIt may be disallowed by the House of Representatives LA19 ss 115, 116
This note is not part of the Act.

Section 2(1): 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).

Section 2(2): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).

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:

General overview of eligibility under the clean slate scheme
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

controlling public office has the meaning given in section 4 of the Public Records Act 2005

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,—

(a)

in relation to a question asked of an individual, means 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)

means any public record (including, without limitation, an electronic public 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 or coerced marriage or civil union 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 4 of the Privacy Act 2020; 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

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

public record has the meaning given in section 4 of the Public Records Act 2005

registrar means a registrar of the District Court; and includes a deputy registrar of the 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 secondary legislation made under any of those Acts; and

(b)

any offence against any secondary legislation 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 controlling public office: inserted, on 10 April 2018, by section 24(2) of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (2018 No 7).

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: amended, on 3 December 2018, by section 39(1) of the Family Violence (Amendments) Act 2018 (2018 No 47).

Section 4 criminal record paragraph (a): amended, on 3 December 2018, by section 39(2) of the Family Violence (Amendments) Act 2018 (2018 No 47).

Section 4 criminal record paragraph (b)(i): amended, on 3 December 2018, by section 39(3) of the Family Violence (Amendments) Act 2018 (2018 No 47).

Section 4 criminal record paragraph (b)(i): amended, on 10 April 2018, by section 24(2) of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (2018 No 7).

Section 4 criminal record paragraph (b)(ii): amended, on 3 December 2018, by section 39(4) of the Family Violence (Amendments) Act 2018 (2018 No 47).

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 law enforcement agency paragraph (a): amended, on 1 December 2020, by section 217 of the Privacy Act 2020 (2020 No 31).

Section 4 non-custodial sentence: amended, on 1 October 2007, by section 58 of the Sentencing Amendment Act 2007 (2007 No 27).

Section 4 offence: repealed, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 4 prison officer: amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

Section 4 public record: inserted, on 10 April 2018, by section 24(2) of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (2018 No 7).

Section 4 registrar: amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

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).

Section 4 traffic offence paragraph (a): amended, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).

Section 4 traffic offence paragraph (b): amended, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).

5 Act binds the Crown

This Act binds the Crown.

Part 2 Clean slate scheme

6 Application of clean slate scheme

(1)

The clean slate scheme applies (except as provided in section 31(3) of the Children’s Act 2014) 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.

Section 6(1): amended, on 21 December 2018, by section 10(1) of the Children’s Amendment Act 2018 (2018 No 58).

Section 6(1): amended, on 1 July 2015, by section 44(2) of the Vulnerable Children Act 2014 (2014 No 40).

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 about him or her under section 65 of the Land Transport Act 1998 or 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.

Section 7(1)(g): replaced, on 1 July 2018, by section 110(1) of the Land Transport Amendment Act 2017 (2017 No 34).

8 Effect of further conviction on eligibility

(1)

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 the 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 the 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).

Section 9(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 9(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

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 the 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 the 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)

The District Court may transfer an application under this section to the High Court if it considers that it is appropriate to do so.

Section 10(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 10(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 10(8): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

11 Further application

(1)

Subject to any rules of court, an individual may make a further application under section 9 or section 10 despite—

(a)

having previously made an application under either of those sections; or

(b)

having appealed under section 12.

(2)

Despite subsection (1), the court may dismiss any further application that it thinks is frivolous, vexatious, or an abuse of the procedure of the court.

12 Right of appeal

(1)

An individual may appeal to the High Court against the decision of the District Court if the District Court declines to make an order under section 10.

(2)

An individual may appeal to the Court of Appeal against the decision of the High Court if the High Court declines to make an order under section 10.

(3)

An appeal under this section must be brought in accordance with the appropriate rules of court within 28 days of the decision, or within such further time as the High Court or the Court of Appeal (as the case may be) may allow on application made before or after the expiration of that period.

(4)

An appeal under this section is by way of rehearing.

(5)

On the hearing of an appeal under this section, a court may confirm, reverse, or modify the decision appealed against.

Section 12(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

13 Prohibition against publication of applicant’s or appellant’s name

(1)

If an application is made under section 9 or section 10, or an appeal is lodged under section 12, the following particulars must not be published in any report or account unless subsection (2) applies:

(a)

the name of the applicant or appellant:

(b)

any particulars leading to the identification of the applicant or appellant.

(2)

The particulars referred to in subsection (1) may be published in a report or account if the court orders that they may be published.

(3)

In deciding whether to permit the particulars referred to in subsection (1) to be published in a report or account, the court must have regard to—

(a)

the interests of any individual (including, without limitation, the applicant or appellant); and

(b)

the public interest.

(4)

Every person commits an offence if the person contravenes subsection (1) and is liable on conviction,—

(a)

in the case of an individual, to a term of imprisonment not exceeding 3 months or a fine not exceeding $1,000, or both; or

(b)

in the case of a body corporate, to a fine not exceeding $5,000.

Section 13(4): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Effect of clean slate scheme on eligible individual

14 Effect of clean slate scheme on eligible individual

(1)

If an individual is an eligible individual, 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.

(2)

An eligible individual may answer a question asked of him or her about his or her criminal record by stating that he or she has no criminal record.

(3)

Nothing in subsection (1) or subsection (2)—

(a)

prevents an eligible individual stating that he or she has a criminal record, disclosing his or her criminal record, or consenting to the disclosure of his or her criminal record; or

(b)

authorises an individual to answer a question asked of him or her about his or her criminal record by stating that he or she has no criminal record if the question is asked—

(i)

under the jurisdiction of the law of a foreign country while an eligible individual is outside New Zealand; or

(ii)

while he or she is in New Zealand but relates to a matter dealt with by the law of a foreign country (for example, a question asked on an application form by the immigration or customs agency of a foreign country).

(4)

Subsections (1) and (2) are subject to the exceptions in section 19.

Effect of clean slate scheme on controlling public offices that hold or have access to criminal records

Heading: amended, on 10 April 2018, by section 24(2) of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (2018 No 7).

15 Responsibility of chief executives

(1)

Subsection (2) applies to the Secretary for Justice and every other chief executive of a controlling public office that holds, or has access to, criminal records.

(2)

A chief executive to whom this subsection applies must take all reasonable steps (including, without limitation, the development of policies and procedures) to ensure the office for which he or she is chief executive, and any employee or contractor of that office—

(a)

conceals the criminal records of eligible individuals when requests are made for their disclosure other than by the eligible individuals to whom the criminal records relate; and

(b)

does not use the criminal records of eligible individuals other than for a purpose authorised under this Act.

(3)

Subsection (2)(a) is subject to the exceptions in section 19.

Section 15(1): amended, on 10 April 2018, by section 24(2) of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (2018 No 7).

Section 15(2): amended, on 10 April 2018, by section 24(2) of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (2018 No 7).

16 Effect of clean slate scheme on controlling public offices, employees, and contractors

(1)

A controlling public office, or an employee or contractor of a controlling public office, that holds or has access to criminal records and that is responding to a request for the disclosure of an eligible individual’s criminal record or any information about an eligible individual’s criminal record (other than from the eligible individual to whom the request relates) must not disclose the criminal record of the eligible individual.

(2)

A controlling public office, or an employee or contractor of a controlling public office, that holds or has access to the criminal records of eligible individuals may not use those criminal records other than for a purpose authorised under this Act.

(3)

Subsection (1) is subject to the exceptions in section 19.

Section 16 heading: amended, on 10 April 2018, by section 24(2) of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (2018 No 7).

Section 16(1): amended, on 10 April 2018, by section 24(2) of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (2018 No 7).

Section 16(2): amended, on 10 April 2018, by section 24(2) of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (2018 No 7).

Offences

17 Offence to unlawfully disclose information required to be concealed

(1A)

This section applies to a person who—

(a)

is an officer, employee, or contractor of a controlling public office, government department, or law enforcement agency; and

(b)

has access to criminal records that are held by, or accessible to, the office, department, or agency.

(1)

The person commits an offence if the person has access to criminal records, and knowing that he or she does not have lawful authority under this Act, or being reckless as to whether or not he or she has lawful authority under this Act, discloses to any person, body, or agency the criminal record, or information about the criminal record, of an eligible individual that is required to be concealed.

(2)

A person who commits an offence against subsection (1) is liable on conviction to a fine not exceeding $20,000.

Section 17(1A): inserted, on 10 April 2018, by section 24(2) of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (2018 No 7).

Section 17(1): amended, on 10 April 2018, by section 24(2) of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (2018 No 7).

Section 17(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

18 Offence to require or request that individual disregard scheme

(1)

A person commits an offence if, without lawful authority under this Act, the person requires or requests that an individual—

(a)

disregard the effect of the clean slate scheme when answering a question about his or her criminal record; or

(b)

disregard the effect of the clean slate scheme and disclose, or give consent to the disclosure of, his or her criminal record.

(2)

A person who commits an offence against subsection (1) is liable on conviction to a fine not exceeding $10,000.

Section 18(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Exceptions

19 Exceptions to general effect of clean slate scheme

(1)

An eligible individual must state that he or she has a criminal record if subsection (3) applies.

(2)

A controlling public office, or an employee or contractor of a controlling public office, that holds or has access to criminal records may disclose the criminal record or information about the criminal record of an eligible individual if subsection (3) applies.

(3)

This subsection applies if—

(a)

the eligible individual’s criminal record or information about the eligible individual’s criminal record is necessary for any of the following purposes:

(i)

the exercise of the prevention, detection, investigation, or prosecution functions of a law enforcement agency or an overseas agency or body whose functions correspond to those of a law enforcement agency; or

(ii)

the administration of sentences or the management of remand inmates by a law enforcement agency; or

(iii)

the exercise of the protective security advice and assistance function of the New Zealand Security Intelligence Service under section 11 of the Intelligence and Security Act 2017; or

(b)

the eligible individual’s criminal record or information about the eligible individual’s criminal record is relevant to any criminal or civil proceedings before a court or tribunal (including sentencing) or proceedings before the New Zealand Parole Board; or

(c)

the eligible individual has made an application of any kind under the Arms Act 1983 and a Police employee is considering whether the individual is a fit and proper person for the purposes of that application; or

(d)

the eligible individual has made an application for employment—

(i)

in a position that involves the national security of New Zealand; or

(ii)

as a Judge, Justice of the Peace, or Community Magistrate; or

(iii)

as a Police employee, prison officer, probation officer, or security officer; or

(da)

the Social Workers Registration Board is considering whether the eligible individual is a fit and proper person to be registered or to practise as a social worker under the Social Workers Registration Act 2003; or

(e)

the eligible individual has made an application to act in a role predominantly involving the care and protection of, but not predominantly involving the delivery of education to, a child or young person (for example, a foster parent or a caregiver of children or young persons); or

(f)

the eligible individual’s criminal record or information about an eligible individual’s criminal record is relevant to an investigation under section 17 of the Oranga Tamariki Act 1989 of a report of ill-treatment or neglect of a child or young person or in relation to any procedure under Part 2 of that Act arising from an investigation of that kind (including, without limitation, holding a family group conference or the Family Court’s consideration of an application for a declaration that a child or young person is in need of care or protection); or

(g)

the eligible individual’s criminal record or information about an eligible individual’s criminal record is relevant to the undertaking of research that requires access to criminal history information to be given to any employee or person contracted to a controlling public office or to any person undertaking research approved by a controlling public office.

Section 19(2): amended, on 10 April 2018, by section 24(2) of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (2018 No 7).

Section 19(3)(a)(iii): amended, on 28 September 2017, by section 335 of the Intelligence and Security Act 2017 (2017 No 10).

Section 19(3)(c): amended, on 1 October 2008, by section 130(1) of the Policing Act 2008 (2008 No 72).

Section 19(3)(d)(iii): amended, on 1 October 2008, by section 123(2) of the Policing Act 2008 (2008 No 72).

Section 19(3)(da): inserted, on 28 February 2019, by section 149(2) of the Social Workers Registration Legislation Act 2019 (2019 No 3).

Section 19(3)(f): amended, on 14 July 2017, by section 149 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31).

Section 19(3)(f): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 19(3)(g): amended, on 10 April 2018, by section 24(2) of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (2018 No 7).

Limits on use of criminal records

20 Limits on use of eligible individuals’ criminal records

(1)

A person, body, or agency (including, without limitation, a controlling public office or government department or law enforcement agency) to whom the criminal record of an eligible individual, or information about the criminal record of an eligible individual, has been disclosed under section 19 must not use that criminal record or information about the criminal record for any purpose other than the purpose in relation to which it was disclosed to the person, body, or agency.

(2)

Any controlling public office or government department or law enforcement agency, or an employee or contractor of a controlling public office or government department or law enforcement agency, that holds or has access to the criminal records of eligible individuals (other than those that have been disclosed to it under section 19) must not use those records or any information about those records for any purpose other than for a purpose for which those records or that information may also be disclosed under section 19.

Section 20(1): amended, on 10 April 2018, by section 24(2) of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (2018 No 7).

Section 20(2): amended, on 10 April 2018, by section 24(2) of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (2018 No 7).

Relationship to other provisions

21 Relationship to other provisions

(1)

In this section, provision means a provision—

(a)

of any enactment (including, without limitation, section 184 of the Criminal Procedure Act 2011 and any rules made under section 409 of the Crimes Act 1961); or

(b)

of a rule of law; or

(c)

contained in any contract, agreement, instrument, or document.

(2)

If a reference in a provision to—

(a)

an individual’s criminal record or to an individual’s character or fitness is applied to an eligible individual, it must be interpreted in a way that is consistent with the eligible individual’s rights under the clean slate scheme; and

(b)

an ability to request the disclosure of information about an individual is applied to an eligible individual’s criminal record, it must be interpreted in a way that is consistent with the eligible individual’s right to have his or her criminal record concealed.

(3)

Nothing in this Act affects an eligible individual’s right under any provision to request information about, or a copy of, his or her own criminal record.

Section 21(1)(a): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Miscellaneous

22 Rules

(1)

In addition to the powers conferred by the District Court Act 2016, the Governor-General may, by Order in Council, with the concurrence of the Chief District Court Judge and any 2 or more members of the Rules Committee (established under section 155 of the Senior Courts Act 2016) of whom at least 1 is a District Court Judge,—

(a)

make rules regulating the practice and procedure of the District Court under this Act; and

(b)

without limiting paragraph (a), make rules regulating the manner in which applications may be made to the District Court under section 9 and section 10.

(2)

In addition to powers conferred by the Senior Courts Act 2016, the Governor-General may, by Order in Council, with the concurrence of the Chief Justice and any 2 or more members of the Rules Committee (established under section 155 of the Senior Courts Act 2016) of whom at least 1 is a High Court Judge,—

(a)

make rules regulating the practice and procedure of the High Court and the Court of Appeal under this Act; and

(b)

without limiting paragraph (a), make rules regulating the manner in which appeals may be brought to the High Court and Court of Appeal under section 12(1) or (2).

(3)

In the absence of any rules under this section, or in any situation not covered by any of those rules, the rules in relation to civil proceedings for the time being in force under the District Court Act 2016 or the Senior Courts Act 2016 (whichever is applicable) apply, with all necessary modifications, to the practice and procedure of courts under this Act.

(4)

See section 148 of the Senior Courts Act 2016 and section 228 of the District Court Act 2016, which provide that court rules are secondary legislation.

Section 22(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 22(1): amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).

Section 22(1)(a): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 22(1)(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 22(2): amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).

Section 22(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 22(3): amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).

Section 22(4): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).

23 Application of Legal Services Act 2011

All proceedings under this Act are civil proceedings for the purposes of the Legal Services Act 2011.

Section 23 heading: amended, on 10 April 2018, by section 24(2) of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (2018 No 7).

Section 23: amended, on 10 April 2018, by section 24(2) of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (2018 No 7).

Transitional provision

24 Transitional provision relating to answers and responses to questions and requests asked or made before commencement

The clean slate scheme applies—

(a)

to an answer given on or after the commencement of this Act by an eligible individual to a question asked about his or her criminal record before the commencement of this Act; and

(b)

to a response given on or after the commencement of this Act to a request made before the commencement of this Act for the disclosure of an individual’s criminal record or information about an individual’s criminal record if, on the commencement of this Act, the individual to whom the request relates has become an eligible individual.

Notes
1 General

This is a consolidation of the Criminal Records (Clean Slate) Act 2004 that incorporates the amendments made to the legislation so that it shows the law as at its stated date.

2 Legal status

A consolidation is taken to correctly state, as at its stated date, the law enacted or made by the legislation consolidated and by the amendments. This presumption applies unless the contrary is shown.

Section 78 of the Legislation Act 2019 provides that this consolidation, published as an electronic version, is an official version. A printed version of legislation that is produced directly from this official electronic version is also an official version.

3 Editorial and format changes

The Parliamentary Counsel Office makes editorial and format changes to consolidations using the powers under subpart 2 of Part 3 of the Legislation Act 2019. See also PCO editorial conventions for consolidations.

4 Amendments incorporated in this consolidation

Secondary Legislation Act 2021 (2021 No 7): section 3

Privacy Act 2020 (2020 No 31): section 217

Social Workers Registration Legislation Act 2019 (2019 No 3): section 149

Children’s Amendment Act 2018 (2018 No 58): section 10(1)

Family Violence (Amendments) Act 2018 (2018 No 47): section 39

Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 (2018 No 7): section 24

Land Transport Amendment Act 2017 (2017 No 34): section 110(1)

Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31): section 149

Intelligence and Security Act 2017 (2017 No 10): section 335

District Court Act 2016 (2016 No 49): section 261

Senior Courts Act 2016 (2016 No 48): section 183(b)

Vulnerable Children Act 2014 (2014 No 40): section 44

Criminal Procedure Act 2011 (2011 No 81): section 413

Policing Act 2008 (2008 No 72): sections 123(2), 130(1)

Births, Deaths, Marriages, and Relationships Registration Amendment Act 2008 (2008 No 48): section 47

Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98): section 81

Sentencing Amendment Act 2007 (2007 No 27): section 58

Crimes Amendment Act 2005 (2005 No 41): section 10

Relationships (Statutory References) Act 2005 (2005 No 3): section 7

Corrections Act 2004 (2004 No 50): section 206

Criminal Records (Clean Slate) Act Commencement Order 2004 (SR 2004/377)