This Act contains several practical pitfalls and traps for practitioners and administrators. The following are concrete issues apparent from the statutory text that create compliance, evidentiary, and procedural risks.
Temporal limitation is strict. The scheme applies only to convictions or charges that happened before 19 January 1991 (s 3(2)). Any offence or alleged offence dated on or after that cut‑off is not eligible. Regulations (s 8(1)(c)) cannot expand eligibility beyond pre‑1991 events; s 8(2) restricts regulations to offences that “happened, or allegedly happened, before 19 January 1991.” Careful date verification is essential.
No oral hearings. The chief executive is prohibited from holding an oral hearing in deciding an application (s 17(2)). All contestable material must be engaged through documents and written submissions. If factual disputes exist about consent, identity of a second party, or age, applicants must supply evidence in writing (s 12(3) allows supporting material; s 14(5) allows the chief executive to request statutory declarations). Absence of oral testimony may affect the types of evidence that are persuasive in close cases.
Applicant consent is operationally necessary for information gathering. The application must include the applicant’s consent to inquiries of, and exchange of information with, each criminal record holder for the purpose of deciding the application (s 12(1)(c)). Without such consent, the chief executive’s ability to obtain records outside the chief executive’s possession may be constrained. For non‑public records, the chief executive requires the applicant’s written consent to request them from third parties (s 16(3)). Practitioners must ensure consent forms are correctly executed.
Balance of probabilities standard and evidential scope. The chief executive applies the civil standard “on the balance of probabilities” to factual matters (ss 18-20). That standard is lower than criminal proof but may nonetheless be difficult to meet decades after events. The Act requires regard to public records in the chief executive’s possession (s 18(3), s 19(3)), but where documentary records are sparse, applicants will need contemporaneous corroboration or persuasive witness statements.
Confidential information exceptions can limit disclosure. The chief executive may give the applicant information or documents in the chief executive’s possession unless the material contains confidential information about a third party (s 14(2)-(3)); similarly, when the chief executive proposes to refuse, the chief executive must supply third‑party documents relied on unless they contain confidential information about another person (s 21(2)-(3)). Practitioners should expect some materials to be withheld on confidentiality grounds and plan to address that in submissions.
Annotation, not deletion, of public records. The Act requires criminal record holders to annotate public records on expungement and to reverse those annotations on revival (ss 28-29). The Act explicitly does not authorise destruction or omission of public records (s 30). The practical effect is that the historical record remains, albeit annotated, which may create Old Record discovery or administrative friction for applicants who may, subject to s 26, be constrained from accessing or circulating some records.
Penalties for disclosure and dishonest obtaining. Disclosing information from a public record about an expunged conviction when the discloser knows, or ought reasonably to know, that the conviction is expunged is a criminal offence with a maximum of 100 penalty units (s 26(2)). Dishonestly obtaining such information is also punishable (s 27). Organisations handling sensitive data must update policies and access controls promptly when annotations are made, as inadvertent staff access could attract criminal sanctions.
False information and revival risk. The Act makes it an offence to give the chief executive information known to be false or misleading in a material particular (s 39), and the chief executive may revive an expungement if satisfied it was procured by false or misleading information (s 31). A show cause process must be provided before revival (s 32). Practitioners must ensure accuracy and full disclosure; selective or misleading descriptions of historical events risk revival and possible criminal exposure.
No compensation and preservation of prior lawful acts. The Act explicitly disclaims a right to compensation because a conviction is expunged (s 5(2)). Moreover, the Act does not affect anything lawfully done before an expungement (s 5(1)). Applicants who seek remedies beyond record correction must pursue other avenues; expungement is not a statutory compensation conduit.
Evidentiary presumptions help but not absolute. Section 37 provides that certificates of the chief executive are evidence and that appointment is presumed until challenged by reasonable notice. However, parties can require proof of authority and appointment, so administrative actors should keep proper delegation records to avoid procedural challenges.
Regulatory and delegation discretion. Regulations can prescribe additional eligible offences and criteria (ss 8, 20), and the chief executive can delegate functions (s 43) and appoint a lawyer to assist (s 41). This creates operational variability across time and administrative arrangements. Practitioners should check current regulations and the chief executive’s delegation notices for up‑to‑date operational practice.
Summary‑only prosecutions and time limits. Offences under the Act are to be prosecuted summarily under the Justices Act 1886 with tight limitation periods (s 38). Complainants must act promptly, and defendants should explore limitation and notification defences in any enforcement action.
These “gotchas” underline the need for careful documentary preparation, precise consent language, comprehensive record checks, internal control updates by record holders, and attention to evidence and procedural timelines when engaging with the expungement scheme.