(g) the New South Wales Crime Commission, or a similar body established under a law of another State; or
(h) the Office of the Director of Public Prosecutions, or a similar body established under a State law; or
(j) a Director of Public Prosecutions, or a person performing a similar function, appointed under a law of a State; or
(k) staff appointed to assist a Director or person referred to in paragraph (j); or
(m) officers or members of the Attorney‑General’s Department of a State or a similar State Department, or of a body administered by such a Department, being officers or members whose primary function is the institution or conduct of proceedings for State offences.
national security information means information affecting the defence, security or international relations of Australia.
Privacy Act means the Privacy Act 1988.
Secretary, in relation to a Commonwealth Department, means the Agency Head within the meaning of the Public Service Act 1999.
security has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
spent, in relation to a conviction, has the meaning given it in section 85ZM.
State includes the Australian Capital Territory and the Northern Territory.
State authority means:
(a) a State Minister;
(b) a State Department;
(c) a body (whether incorporated or not), or a tribunal, established or appointed for a public purpose by or under a State law, not being:
(i) an incorporated company, society or association;
(ii) an association of employers or employees that is registered or recognised under a State law dealing with the conciliation and arbitration of industrial disputes; or
(iii) the body corporate constituted under subsection 6(1) of the Legal Practitioners Ordinance 1970 of the Australian Capital Territory or a similar body constituted under a law of another State;
(d) a body established or appointed by a Governor of a State, or by a State Minister, or by the Australian Capital Territory Executive or the Administrator of the Northern Territory otherwise than by or under a State law;
(e) a person holding or performing the duties of an office established by or under, or an appointment made under, a State law, other than the office of head of a State Department (however described);
(f) a person holding or performing the duties of an appointment, being an appointment made by a Governor of a State or by a State Minister, or by the Australian Capital Territory Executive or the Administrator of the Northern Territory otherwise than under a State law;
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(h) a State police force.
State law means a law in force in a State (other than a Commonwealth law).
State offence means an offence against a State law.
Territory does not include the Australian Capital Territory or the Northern Territory.
Territory law means a law in force in a Territory (other than a Commonwealth law).
Territory offence means an offence against a Territory law.
waiting period, in relation to an offence, means:
(a) if the person convicted of the offence was dealt with as a minor in relation to the conviction—the period of 5 years beginning on the day on which the person was convicted of the offence; or
(b) in any other case—the period of 10 years beginning on the day on which the person was convicted of the offence.
85ZM Meaning of conviction and spent conviction
(1) For the purposes of this Part, a person shall be taken to have been convicted of an offence if:
(a) the person has been convicted, whether summarily or on indictment, of the offence;
(b) the person has been charged with, and found guilty of, the offence but discharged without conviction; or
(c) the person has not been found guilty of the offence, but a court has taken it into account in passing sentence on the person for another offence.
(2) For the purposes of this Part, a person’s conviction of an offence is spent if:
(a) the person has been granted a pardon for a reason other than that the person was wrongly convicted of the offence; or
(b) the person was not sentenced to imprisonment for the offence, or was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended.
85ZN Meaning of quash
For the purposes of this Part, a person’s conviction of an offence shall be taken to have been quashed:
(a) where the person was convicted of the offence—if the conviction has been quashed or set aside;
(b) where the person was found guilty of the offence, but discharged without conviction—if the finding of guilt has been quashed or set aside; or
(c) where the person was not found guilty of the offence, but a court has taken it into account in passing sentence on the person for another offence:
(i) if the person’s conviction of the other offence has been quashed or set aside; or
(ii) if the court’s decision to take the offence into account has been set aside.
85ZP Application of Part
(1) This Part applies in relation to a person convicted of an offence whether the person was convicted before or after the commencement of this Part.
(2) A reference in this Part to a person convicted of an offence does not include a reference to a body corporate.
(3) Nothing in this Part authorises a person or body to disclose or take into account a conviction of an offence if to do so would contravene any Commonwealth law, State law, Territory law or foreign law.
Note: There are exceptions in sections 85ZZJC (use and disclosure of spent conviction etc. information by ASIO, ACC and other intelligence or security agencies) and 85ZZL (criminal proceedings before the Federal Court of Australia).
(4) Nothing in this Part affects anything lawfully done before a pardon is granted or a conviction is quashed or spent.
85ZQ Part binds the Crown
This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
Division 2—Pardons for persons wrongly convicted, and quashed convictions
85ZR Pardons for persons wrongly convicted
(1) Despite any other Commonwealth law or any State law or Territory law, where a person has been granted a free and absolute pardon for a Commonwealth offence or a Territory offence because the person was wrongly convicted of the offence:
(a) the person shall be taken, in any State or Territory, for all purposes, never to have been convicted of the offence; and
(b) the person shall be taken, in a foreign country, by any Commonwealth authority or State authority in that country, for all purposes, never to have been convicted of the offence.
(2) Despite any other Commonwealth law or any Territory law, where, under a State law or a foreign law a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State or foreign country:
(a) the person shall be taken, in any Territory, in corresponding circumstances or for a corresponding purpose, never to have been convicted of that offence; and
(b) the person shall be taken, in any State or foreign country, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State or country, never to have been convicted of that offence.
85ZS Effect of pardons for persons wrongly convicted
(1) Subject to Division 6, but despite any other Commonwealth law or any State law or Territory law, where, under section 85ZR, a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence:
(a) the person is not required, in those circumstances or for that purpose, to disclose the fact that the person was charged with, or convicted of, the offence;
(b) it is lawful for the person to claim, in those circumstances, or for that purpose, on oath or otherwise, that he or she was not charged with, or convicted of, the offence;
(c) in the case of a Commonwealth offence or a Territory offence—the person is not otherwise subject to any legal duty or disability to which he or she would not have been subject if he or she had not been convicted; and
(d) anyone else who knows, or could reasonably be expected to know, that section 85ZR applies to the person in relation to the offence shall not:
(i) without the person’s consent, disclose the fact that the person was charged with, or convicted of, the offence to any other person, or to a Commonwealth authority or State authority, where it is lawful for the first‑mentioned person not to disclose it to that other person or that authority; or
(ii) in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence.
(2) Subsection (1) does not affect the generality of section 85ZR.
85ZT Quashed convictions
(1) Subject to Division 6, but despite any other Commonwealth law or any State law or Territory law, where a person’s conviction of a Commonwealth offence or a Territory offence has been quashed, the person is not required:
(a) in any State or Territory—to disclose to any person, for any purpose, the fact that the person has been charged with, or convicted of, the offence; or
(b) in a foreign country—to disclose to any Commonwealth authority or State authority in that country, for any purpose, the fact that the person has been charged with, or convicted of, the offence.
(2) Subject to Division 6, but despite any other Commonwealth law or any Territory law, where a person’s conviction of a State offence or a foreign offence has been quashed, the person is not required:
(a) in any Territory—to disclose to any person, for any purpose, the fact that the person has been charged with, or convicted of, the offence; or
(b) in any State or foreign country—to disclose to any Commonwealth authority in that State or country, for any purpose, the fact that the person has been charged with, or convicted of, the offence.
85ZU Effect of quashed convictions
Subject to Division 6, but despite any other Commonwealth law or any State law or Territory law, where, under section 85ZT, it is lawful for a person not to disclose, in particular circumstances, or for a particular purpose, the fact that he or she was charged with, or convicted of, an offence:
(a) it is lawful for the person to claim, in those circumstances, or for that purpose, on oath or otherwise, that he or she was not charged with, or convicted of, the offence; and
(b) anyone else who knows, or could reasonably be expected to know, that section 85ZT applies to the person in relation to the offence shall not:
(i) without the person’s consent, disclose the fact that the person was charged with, or convicted of, the offence to any other person, or to a Commonwealth authority or State authority, where it is lawful for the first‑mentioned person not to disclose it to that other person or that authority; or
(ii) in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence.
Division 3—Spent convictions
85ZV Spent convictions
(1) Subject to Division 6, but despite any other Commonwealth law or any State law or Territory law, if a person’s conviction of a Commonwealth offence or a Territory offence is spent, the person is not required:
(a) in any State or Territory—to disclose to any person, for any purpose, the fact that the person has been charged with, or convicted of, the offence; or
(b) in a foreign country—to disclose to any Commonwealth authority or State authority in that country, for any purpose, the fact that the person has been charged with, or convicted of, the offence.
(2) Subject to Division 6, but despite any other Commonwealth law or any Territory law, if a person’s conviction of a State offence or a foreign offence is spent, the person is not required:
(a) in any Territory—to disclose to any person, for any purpose, the fact that the person has been charged with, or convicted of, the offence; or
(b) in any State or foreign country—to disclose to any Commonwealth authority in that State or country, for any purpose, the fact that the person has been charged with, or convicted of, the offence.
(3) Subject to Division 6, but despite any other Commonwealth law or any Territory law, where:
(a) a person was convicted of a State offence;
(b) subsection (2) does not apply to the person in relation to the offence; and
(c) under a law in force in that State, being a law dealing with the disclosure or taking into account of spent convictions (however described in that law) it is lawful for the person, in particular circumstances or for a particular purpose, not to disclose the fact that the person was charged with, or convicted of, the offence;
the person is not required, in corresponding circumstances or for a corresponding purpose:
(d) in a Territory—to disclose the fact that the person was charged with, or convicted of, the offence; or
(e) in a State or foreign country—to disclose that fact to any Commonwealth authority in that State or country.
85ZW Effect of right of non‑disclosure
Subject to Division 6, but despite any other Commonwealth law, or any State law or Territory law, where, under section 85ZV, it is lawful for a person not to disclose, in particular circumstances, or for a particular purpose, the fact that he or she was charged with, or convicted of, an offence:
(a) it is lawful for the person to claim, in those circumstances, or for that purpose, on oath or otherwise, that he or she was not charged with, or convicted of, the offence; and
(b) anyone else who knows, or could reasonably be expected to know, that section 85ZV applies to the person in relation to the offence shall not:
(i) without the person’s consent, disclose the fact that the person was charged with, or convicted of, the offence to any other person, or to a Commonwealth authority or State authority, where it is lawful for the first‑mentioned person not to disclose it to that other person or that authority; or
(ii) in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence.
Division 4—Convictions of further offences
85ZX Convictions of further Commonwealth or Territory offences
(1) Where:
(a) Division 3 applies to a person in relation to an offence of which the person was convicted, or would (unless an order is made under this section) so apply to the person if the waiting period for the offence had ended; and
(b) before or after the end of the waiting period for the offence, the person is convicted summarily, by a court exercising federal jurisdiction or a court of a Territory, of another offence, being an offence committed during that waiting period;
the court may order that Division 3 ceases to apply or does not apply to the person, as the case requires, in relation to the earlier offence until the waiting period for the later offence has ended.
(2) Where:
(a) Division 3 applies to a person in relation to an offence of which the person was convicted, or would (but for this subsection) so apply to the person if the waiting period for the offence had ended; and
(b) before or after the end of the waiting period for the offence, the person is convicted on indictment, by a court exercising federal jurisdiction or a court of a Territory, of another offence, being an offence committed during that waiting period;
Division 3 ceases to apply or does not apply to the person, as the case requires, in relation to the earlier offence until the waiting period for the later offence has ended.
85ZY Convictions of further State or foreign offences
Subject to subsection 85ZV(3), where:
(a) Division 3 applies to a person in relation to an offence of which the person was convicted, or would so apply to the person if the waiting period for the offence had ended; and
(b) before or after the end of the waiting period for the offence, the person is convicted (whether summarily or on indictment) by a court of a State (not being a court exercising federal jurisdiction) or a court of a foreign country, of another offence, being an offence committed during that waiting period;
Division 3 ceases to apply or does not apply to the person, as the case requires, in relation to the earlier offence until the waiting period for the later offence has ended.
Division 5—Complaints to Information Commissioner
85ZZ Information Commissioner’s functions
(1) The Information Commissioner has the following functions:
(a) to investigate an act or practice of a person or of a Commonwealth authority or State authority that may breach Division 2 or 3 and, where the Commissioner considers it appropriate, to try, by conciliation, to effect a settlement of the matters that gave rise to the investigation;
(b) to receive and examine any written requests for complete or partial exclusion of persons from the application of Division 2 or 3 and advise the Minister whether an exclusion should be granted and whether there should be any restrictions on the circumstances in which an exclusion would apply.
(1A) The functions conferred by subsection (1) are privacy functions for the purposes of the Australian Information Commissioner Act 2010.
(2) In the performance of those functions, the Information Commissioner shall:
(a) have due regard for the protection of important human rights and social interests that compete with the rights given by this Part, including the recognition of the right of government and business to achieve their objectives in an efficient way;
(b) take account of:
(i) international obligations accepted by Australia, including those concerning the international technology of communications; and
(ii) developing general international guidelines relevant to the better protection of individual privacy;
(c) take into account the nature of the offence concerned;