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Rehabilitation of Offenders (Irrelevant Convictions) Act 1997

Commencement: 1 July 1998

FIJI

REHABILITATION OF OFFENDERS (IRRELEVANT CONVICTIONS)
ACT, 1997

ARRANGEMENT OF SECTIONS.

SECTION

PART I-PRELIMINARY

1. Short title and commencement
2. Interpretation
3. Definition of irrelevant conviction
4. Definition of direct relationship
5. Definition of rehabilitation period
6. Commencement of rehabilitation period

PART II-UNLAWFUL DISCRIMINATION

7. Employment
8. Trade unions, professional associations and organisations
9. Qualifying bodies
10. Irrelevant conviction not a ground for disciplinary action
11. Vocational training bodies
12. Disqualification from holding office
13. Access to public place or vehicle or facility
14. Provision of goods and services
15. Refusal of licence or permit
16. Land or premises
17. Educational establishments
18. Subterfuge
19. Employer and principal

PART III-PROHIBITIONS ON DISCLOSURE
OF IRRELEVANT CONVICTIONS

20. Disclosing of information where rehabilitation period expired
21. Defence to section 20
22. Offence to disclose conviction where rehabilitation period expired
23. Exception to section 22 for security purposes
24. Exception to section 22 for purposes of court proceedings
25. Defence to section 22

PART IV-MISCELLANEOUS PROVISIONS

26. Computation of rehabilitation period
27. Certificate
28. Destruction of criminal records
29. Penalty
30. Regulation
Schedule

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I assent.
K.K.T .MARA President

[11th June 1997]

AN ACT
TO ASSIST IN THE REHABILITATION OF PERSONS WITH CONVICTIONS AND TO REMOVE CERTAIN DISABILITIES AND RELATED MATTERS

ENACTED by the Parliament of Fiji-

PART I-PRELIMINARY

Short title and commencement

1. (1) This Act may be cited as the Rehabilitation of Offenders (Irrelevant Convictions) Act, 1997.

(2) This Act shall come into force on a date appointed by the Minister and published in the Fiji Republic Gazette.

Interpretation

2. In this Act, unless the context otherwise requires-

"conviction" means a conviction for an offence entered either before or after the commencement of this Act:-

(a) by or before a court, or a body or person exercising judicial functions, in Fiji; or

(b) by or before a court, or a body or person exercising judicial functions, outside Fiji for an offence, had the offence been committed in Fiji, it would have constituted an offence under the laws of Fiji;

"educational establishment" includes an establishment offering any form of training or instruction;

"official" means a person in the service of the State or a member or employee of a local authority or public body and includes an unestablished, casual or temporary employee;

"premises" includes commercial premises.

Definition of irrelevant conviction

3. For the purposes of this Act, a conviction is irrelevant:-

(a) where there is no direct relationship between that conviction and the particular matter in respect of which it is sought to take that conviction into account; or

(b) if the rehabilitation period has expired.

Definition of direct relationship

4.-(1) For the purposes of section 3, there is a direct relationship between a conviction and any matter in respect of which it is sought to take that conviction into account if the fact of that conviction means that there is a real likelihood that the person against whom that conviction was entered will, in relation to that matter:-

(a) be unreliable, untrustworthy, or otherwise unsatisfactory; or

(b) commit a further offence.

(2) In determining, whether there is a real likelihood that any of the matters specified in paragraph (a) or paragraph (b) of subsection (1) will occur, the following matters shall be taken into consideration:-

(a) in relation to the offence for which the conviction in issue was entered,-

(i) the type and seriousness of that offence;

(ii) the overall circumstances of that offence; and

(iii) the period that has elapsed since that offence was committed; and

(b) in relation to the person convicted, his or her present personal attitudes and personal circumstances.

Definition of rehabilitation period

5.-(1) Notwithstanding subsection (2), the rehabilitation period applicable to a conviction is:

(a) in case of a person who is seventeen years or over, ten years; or

(b) in case of a person who is under the age of seventeen years,-

(i) seven years, for a term of imprisonment or detention not exceeding two years under section 30 or 31 of the Juveniles Act; or

(ii) ten years, for a term of imprisonment or detention exceeding two years under section 31 of the Juveniles Act.

(2) Subject to subsection (1), the rehabilitation period applicable to Part III, is five years.

Commencement of rehabilitation period

6.-(1) The rehabilitation period commences:-

(a) on the date of conviction; or

(b) where a custodial sentence was imposed, on the date: on which the convicted person was unconditionally released from imprisonment; or

(c) where the release of a convicted person from detention is subject to a condition or other penalty imposed by the Court, when the condition or that other penalty is fulfilled.

(2) The rehabilitation period for a conviction that was entered before the commencement of this Act shall be deemed to have been expired on the day the rehabilitation period would have expired as if the Act had been in force:

Provided that it does not affect any act done or omitted that may have been an offence under or in contravention of, this Act before the coming into force of this Act.

PART II-UNLAWFUL DISCRIMINATION

Employment

7.-(1) Notwithstanding subsection (3), an employer or; proposed employer shall not:-

(a) refuse to employ any other person;

(b) fail to give any other person the same employment conditions, as an employee employed to do the same or substantially the same work; or

(c) terminate the employment of any other person in circumstances where any other employee would not be terminated,

by reason solely of the existence of an irrelevant conviction of that other person.

(2) A person who is concerned with procuring employment for another person or procuring an employee for an employer or proposed employer shall not treat any other person seeking employment differently from another person who is in the same or substantially similar circumstances by reason solely of an irrelevant conviction of that other person.

(3) Subsection (1) does not apply to an actor omission, by a Government department or public body where:-

(a) the act or omission, is based on the fact that a person has not been given an unqualified recommendation for a security clearance in a security vetting carried out by the Police at the request of that Government department or public body; and

(b) an unqualified recommendation for a security clearance was not given to that person because that person has a conviction.

Trade unions, professional associations and organisations

8.-(1) Notwithstanding an express or implied provision of an enactment, law or rule of an association, to the contrary, authorising or requiring a conviction to be taken into account, no organisation shall:-

(a) refuse or omit to accept a person for membership;

(b) refuse or omit to offer a person the same terms or conditions of membership or the same access to any benefit, facility or service, including the right to stand for and hold office in the organization, as would otherwise be made available; or

(c) suspend or deprive a person of membership, in circumstances in which other persons would pot be deprived of membership or be suspended,

by reason of an irrelevant conviction of the person concerned.

(2) In this section "organisation" means an organisation of workers, employers or any other organisation which exists for the purposes of members who carry on a particular profession, trade, or calling.

Qualifying bodies

9. Notwithstanding the provision of any other enactment, law or rule of a body or authority, to the contrary, authorising or requiring a conviction to be taken into account, no authority, body or person empowered to confer an approval, authorisation, or qualification that is needed for, or facilitates, an engagement in a profession, trade or calling, shall:-

(a) refuse or omit to confer that approval, authorisation, or qualification on a person;

(b) confer that approval, authorisation, or qualification on a less favourable term or condition than would otherwise be made available, or

(c) withdraw that approval, authorisation, or qualification or vary the terms or conditions on which it is held, in circumstances in which it would not otherwise be withdrawn or varied,

by reason of an irrelevant conviction of the person concerned.

Irrelevant conviction not a ground for disciplinary action

10. Notwithstanding a provision in an enactment, law or rule to the contrary, authorising or requiring a conviction to be taken into account, an authority or body empowered under an enactment or rules of that authority or body to exercise disciplinary powers on persons carrying on a profession, trade or calling, shall not exercise the disciplinary powers on a person by reason of an irrelevant conviction of the person.

Vocational training bodies

11. Where the function of an organisation or association is to provide training, facilities or opportunities for training including facilities or opportunities by way of grants to assist a person for any employment, that organisation or association shall not:-

(a) refuse or omit to provide training, or facilities or opportunities for training;

(b) terms and conditions than would otherwise be made available; or

(c) terminate training, facilities or opportunities for training,

by reason of an irrelevant conviction of the person concerned.

Irrelevant conviction not to disqualify from holding office

12. Notwithstanding any enactment, law or rule, to the contrary, specifying as a requirement or condition for holding an office that a person be a fit and proper person o be of good character or reputation or be fit to be appointed or meet any other requirement or condition relating to the character or conduct of a person, that enactment, law or rule from holding that office.

Access to public place or vehicle or facility

13. A person shall not:-

(a) refuse to allow any other person access to or use of, any place or vehicle which members of the public are entitled or allowed to enter or use;

(b) refuse any other person the use of any facility in that place or vehicle which is available to members of the public; or

(c) require any other person to leave or cease to use that place or vehicle or facility,

by reason of an irrelevant conviction of that other person.

Provision of goods or services

14.-(1) Notwithstanding any provision in any other enactment or business rule or practice, to the contrary, authorising or requiring a conviction to be taken into account (whether that authorisation. or requirement relates to the existence or otherwise of a conviction or to the character or conduct of the person concerned), a person who supplies or: provides goods, facilities, or services to the public, shall not:-

(a) refuse or fail, on demand, to provide any other person with the goods, facilities, or services; or

(b) provide any other person with the goods, facilities, or services on a less favourable term or condition than those upon or subject to which the person would otherwise make them available,

by reason of an irrelevant conviction of that other person.

(2) For the purposes of subsection (1); but without limiting the meaning of the terms goods, facilities, and services in subsection (1), the term "facilities" includes facilities by way of banking, insurance, grants, loans credit, finance, licences or permits.

(3) For the purposes of subsection (1), a refusal or failure to provide goods, facilities, or services includes a decision to cancel, revoke, or decline to renew or extend a licence or permit.

(4) Notwithstanding a provision of an enactment or rule of a club, to the contrary, authorising or requiring a conviction to be taken into account (whether that authorisation concerned), a club that grants rights or privileges to members o(any other club shall not refuse or fair on demand to provide rights or privileges to a member of that other club, or provide a less favourable term or condition which would otherwise be made available, by reason of an irrelevant conviction of the member.

Refusal of licence or permit

15. Notwithstanding any other enactment, to the contrary, authorising or requiring a conviction or character or conduct of a person to be taken into account, a person authorised or required under an enactment to grant, cancel, revoke, renew or extend a licence or permit, shall not take into account the fact that any other person has an irrelevant conviction under that enactment when:-

(a) refusing to grant a licence or permit to that other person;

(b) granting a licence or permit to that other person on a less favourable term or condition than would otherwise be made available to another person;

(c) cancelling or revoking, or declining to renew or extend, a licence or permit held by that other person.

Land or premises

16.-(1) A person shall not, on his or her own behalf or as an agent:-

(a) refuse or fail to dispose of any estate or interest in land or premises to any other person;

(b) dispose of an estate or interest in land or premises to any other person on a less favourable term or condition than would be offered to another person;

(c) treat any other person who is seeking to acquire or has acquired an estate or interest in land or premises, differently from another person in the same circumstances;

(d) deny any other person, directly or indirectly, the tight to occupy a land or premises;

(e) terminate an estate or interest in land or the right of any other person to occupy a land or premises;

by reason of an irrelevant conviction of the person concerned.

(2) A person, in his or her own behalf or as an agent, shall not impose or seek to impose on any other person a term or condition, by reference to an irrelevant conviction of that other person, prohibiting or restricting the rights or privileges of that other person as licensee or invitee of a tenant or occupier of a land or premises.

Educational establishments

17. No educational establishment, or authority responsible for the control of an educational establishment shall:-

(a) refuse or fail to admit a pupil or student;

(b) admit a person on a less favourable term or condition than would otherwise be made available;

(c) deny or restrict access to any benefit or service provided by the educational establishment to a person; or

(d) exclude or subject a person to any other detriment, by reason of an irrelevant conviction of the person.

Subterfuge

18. Where a requirement or condition which is not apparently in contravention of this Act has the effect of giving preference to a person without a conviction, in a situation where such preference would be unlawful under this Act, the imposition of that condition or requirement shall be unlawful under this Act unless the person imposing it establishes good reason for its imposition and shows that its imposition is not a subterfuge to avoid complying with this Act.

Employer and principal

19.-(1) Notwithstanding subsection (3), an act done or omitted to be done by an employee, shall be treated, for the purposes of this Act, as done or omitted to be done by the employer as well as the employee whether or not the act was done or omitted to be done with the knowledge or approval of the employer.

(2) An act done or omitted to be done by an agent shall, for the purposes of this Act, be treated as done or omitted to be done by the principal as well as the agent unless the act or omission was done without the express or implied authority, precedent or subsequent, of the principal.

(3) In any proceedings under this Act, it is a defence for an employer to prove that he or she took steps as were reasonably practicable to prevent the employee from doing that act, or omission, or acts of that description.

PART III-PROHIBITIONS ON DISCLOSURE OF
IRRELEVANT CONVICTIONS

Where rehabilitation period expired

20.-(1) A person shall not do or omit to do an act that publishes or discloses any information where:-

(a) the information discloses or publishes the fact that a person has a conviction;

(b) the rehabilitation period applicable to that conviction has expired; and

(c) the person who publishes that information knows, or has good reason to know, that the rehabilitation period applicable to that conviction has expired.

(2) A person who contravenes this section commits an offence and is liable, on conviction:-

(a) in case of an individual, to a fine not exceeding $1,000 or to a term of imprisonment not exceeding 18 months or both;

(b) in case of a body corporate or unincorporated, to a fine not exceeding $5,000.

Defence under section 20

21. It is a defence under section 20 to prove that the disclosure or publication was done with the consent of the person concerned.

Offence to disclose existence of conviction where rehabilitation period expired

22.-(1) Notwithstanding anything in any other Act or sections 23 to 25 to the contrary, no official shall disclose or communicate to any other person any information where:-

(a) that information discloses the fact that a person has a conviction;

(b) the rehabilitation period applicable to that conviction has expired;

(c) the official who communicates or discloses that information knows, or has good reason to know, that the rehabilitation period applicable to that conviction has expired; and

(d) the information that discloses the fact of that conviction came to the knowledge of that official in the course of his or her official duties.

(2) A person who contravenes this section commits an offence and is liable on conviction to a fine not exceeding $1,000 or to a term of imprisonment not exceeding 18 months or both.

Exception to section 22 relating to security purposes

23.-(1) Subject to section 22, a police officer may disclose or communicate any information to an officer of a Government department or public body where the communication or disclosure was done:-

(a) with the consent of the person concerned; and

(b) for the purposes of vetting that person for security purposes.

(2) An information communicated or disclosed under subsection (1), may be further communicated between Government departments or public bodies:-

(a) for the purposes of vetting the person to whom the information relates for security purposes; or

(b) for the purposes of enabling a Government department or public body to determine the suitability or eligibility of the person to whom the information relates for employment or office, continuance in employment or office, or removal from employment or office.

Exception to section 22 relating to court proceedings

24.-(1) Subject to section 22, a person may communicate or disclose any info if that information is communicated:-

(a) for the purpose of enabling a person who has been convicted of an offence to be sentenced or otherwise dealt with, under any enactment for that offence; or

(b) for the purposes of proving, in any judicial proceedings, the fact that a person has been convicted of an offence.

(2) Notwithstanding the provisions of an enactment or law to the contrary , a person shall not refer to an irrelevant conviction without the leave of the Court before which the matter is being heard.

(3) A person seeking leave under subsection (2) shall make an application in Chambers.

(4) Where leave is sought under subsection (2), the Court shall not grant leave unless it is satisfied that:-

(a) the conviction is relevant to the proceedings;

(b) justice cannot be done except by reference to the conviction; and

(c) the need to refer to the conviction outweighs the protection this Act confers on the person with that conviction.

(5) Where leave is granted under this section, the Court may impose a condition that no particulars are to be published that would identify any person as being a person with an irrelevant conviction or other condition as the Court thinks fit.

(6) Where consent to communicate the information is not given by the person to whom it relates, a person may apply to a Judge in Chambers for an order to access the information. The applicant should show good cause and a compelling need for the specific facts.

Defence to charge under section 22

25. It is a defence under section 22 to prove that:-

(a) the information was disclosed or communicated only to the person to whom it relates; or

(b) the information was disclosed or communicated with the consent of the person to whom it relates.

PART IV-MISCELLANEOUS

Computation of rehabilitation period

26.-(1) Where a person is convicted of an offence and before the rehabilitation period applicable to that conviction has expired, that person is convicted, in Fiji or overseas, of another offence, the rehabilitation period applicable to the first conviction shall not expire until the rehabilitation period applicable to the later conviction expires.

(2) Where a person is convicted of an offence and after the rehabilitation period applicable to that conviction has expired, that person is convicted in Fiji or overseas, of an offence that was committed before that rehabilitation period expired, a new rehabilitation period shall begin to run in respect of the first-mentioned conviction from the date on which the rehabilitation period applicable to the later conviction begins and, until the new rehabilitation period expires, that person may, subject to subsection (3) of this section, be treated as if the first rehabilitation period applicable to the first conviction had not expired.

(3) Where a new rehabilitation period is made to run in respect of a conviction, period applicable to that conviction had expired.

(4) Notwithstanding subsection (1) or subsection (2), where a person is convicted of an offence, a later conviction for an offence which is not an offence punishable by imprisonment shall not extend the rehabilitation period applicable to the first-mentioned conviction or, if the rehabilitation period applicable to the first -mentioned conviction has expired, cause a new rehabilitation period to run in respect of that conviction.

Certificate of rehabilitation

27.-(1) A person who has a conviction on which the rehabilitation period has expired may apply, in writing, to the Commissioner of Police for a certificate certifying that, for the purposes of this Act, the rehabilitation period for that conviction has expired.

(2) Where a person makes an application under subsection (1), the Commissioner of Police shall, after making proper inquiry and being satisfied that the applicant is entitled to it, issue a certificate in the form prescribed in the Schedule.

(3) In any proceedings under this Act, a certificate issued in respect of a conviction in a foreign country may be admitted as evidence by the Court and, if admitted, shall be deemed as if it were a certificate issued under this Act.

Destruction of criminal records

28. This Act does not authorise the destruction of criminal records.

Penalty

29. A person who contravenes a provision of this Act, for which no penalty is provided, commits an offence and is liable on conviction:-

(a) in the case of an individual, to a fine not exceeding $1,000 or a term of imprisonment not exceeding 18 months or both; or

(b) in the case of a body corporate or unincorporated, to a fine not exceeding $5,000.

Regulation

30. The Minister may make Regulations necessary to carry into effect the provisions of this Act.

SCHEDULE

Rehabilitation of Offenders (Irrelevant Convictions) Act
(Section 27)

CERTIFICATE OF REHABILITATION

I certify that the rehabilitation period regarding the conviction entered against J has, for the purposes of the Rehabilitation of Offenders (Convictions) Act, 1997 expired.

Dated this ..................... day of ........................, 19

Commissioner of Police

Passed by the House of Representatives this fourteenth day of May, in the year of our Lord one thousand, nine hundred and ninety-seven.

Passed by the Senate this twenty seventh day of May, in the year of our Lord one thousand, nine hundred and ninety-seven.

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