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How the Clean Slate Act applies to the media

By Steven | May 20, 2008

The Clean Slate Act effectively expunges people’s old, minor criminal offences. But does that mean the media can’t publish them?

Reading the Act as a whole, it looks like it doesn’t. Yes, it’s an offence for a journalist to ask someone to disregard the Act, which allows people to lie about particular convictions if they qualify. And it’s an offence for officials who know about the convictions to reveal them to the media. But what if the media know about them already? What if, say, a reporter does a news search and discovers a story about an old conviction that’s covered by the Clean Slate Act? Or finds out from a third party? Can that be included in a story?

My view is that it can. The Act only seems to apply to questions asked directly of an individual and government agencies holding that information. Section 6 says as much, and seems to limit the scope of the Act. But there’s one thing that gives me pause. Section 17(1) says:

A 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 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.

Might that cover the media? Here’s my thinking:

  1. The media don’t have access to criminal records as defined under the Act, which seems to be limited to “official records”. If the media get the information elsewhere, they can publish.
  2. The media aren’t given lawful authority under the Act to publish, but they don’t need it, because the Act doesn’t apply to them.
  3. In publishing information acquired elsewhere, they are not revealing information that is “required to be concealed”. Nowhere does the Act require the information generally to be concealed. It requires particular people to conceal it in particular circumstances. And it requires particular questions not to be asked directly of the Clean Slated person. But that’s all.
  4. The Bill of Rights would support a narrow reading of the section, as does the scheme of the Act. 

This seems to accord with Professor Burrows’ view in the Journalists’ Guide, and Burrows and Cheer in Media Law in NZ, who note that the Select Committee accepted that some information was in the public domain and nothing could be done about that.

Topics: General, Journalism and criminal law, Privacy tort | 42 Comments »

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