Examining the consequences of convictions

The Dunedin courthouse. Photo: ODT files
The Dunedin courthouse. Photo: ODT files

More than 60,000 adults have been convicted in New Zealand courts each year on average over the past decade, with about three in four aged under 40.

Public Interest Journalism Fund reporter Guy Williams looks at the ongoing consequences those convictions will be having on their employment, chances of getting rental accommodation, insurance, a loan, and their ability to travel or work overseas. 

On the day the Otago Daily Times called, former immigration minister Tuariki Delamere had just got off the phone with a client caught drink-driving for a second time.

Mr Delamere’s Auckland-based immigration consultancy was helping the man through the final stages of a residency visa application.

But because of his latest offending, the client received a deportation liability notice — a warning letter from Immigration New Zealand saying he should leave the country or face eventual deportation.

The consultancy helped the man get the deportation notice sent after the first conviction rescinded, and yet he had done it again, Mr Delamere said.

"Now his whole life is up in jeopardy."

Copeland Ashcroft Queenstown partner Naoimh McAllister: "You’re always going to discount those...
Copeland Ashcroft Queenstown partner Naoimh McAllister: "You’re always going to discount those with convictions against those who haven’t." PHOTO: SUPPLIED
Down in the Wakatipu, where far-flung suburbs make driving a necessity for most, employment lawyer Naoimh McAllister regularly deals with clients who have put their jobs in jeopardy by committing driving offences.

The perception among younger people that minor convictions will not have consequences for their employment or other parts of their lives was "naive", Ms McAllister said.

Those convictions could be even more of a hurdle when going for a new job.

"When an employer has applicants for a role, and you’re sifting through to see who’s suitable, you’re always going to discount those with convictions against those who haven’t."

Since the introduction of the Clean Slate Act in 2004, people who have kept out of trouble for seven years have their pasts buried, except for more serious offences.

However, besides the embarrassment of having your criminal offending reported in this newspaper and others, getting convictions in early adulthood can be a burden that never quite goes away.

Harder to get a job

When employers are recruiting new staff, convictions are "always going to be an issue", Ms McAllister said.

Most asked job candidates to declare convictions in their written applications.

"The worst thing for an employer is to put all that time and money into recruiting someone, induct them into the business, and then discover something they should have been told about and weren’t.

"If you’ve got 20 staff or more, you don’t have access to a 90-day trial period, so it’s quite a risk when you hire anyone.

"So an employer just won’t have an appetite for that risk when they don’t need to."

Government department Employment NZ says employers can get job applicants’ criminal records from the Ministry of Justice or police vetting service, provided they ask their permission.

For some types of jobs, such as the police, Corrections and national security-related roles, clean slate rules do not apply and full criminal records are disclosed.

For example, the police do not accept applicants with convictions for drugs, dishonesty, violence and sexual offences, or recent or multiple drink-driving offences.

Serious offences, particularly violent or sexual crimes, are likely to be an insurmountable barrier to entering other occupations such as the military, medicine and teaching.

Lose your job

When existing employees get charged or convicted, they have a "good faith" obligation to tell their boss, Ms McAllister said.

A common situation in her work was when employees who needed to drive for their work committed a driving offence.

Employers tended to treat those situations on a case-by-case basis.

"The best you can hope for is to explain it to an understanding employer."

Employment NZ says an employer can take disciplinary action against a worker convicted of a criminal offence, including dismissing them, usually for reasons like bringing the employer into disrepute or breaching a code of conduct.

Get deported

Under New Zealand immigration law, any conviction for which the maximum penalty is three months’ prison can lead to deportation.

A surprising number of offences have such a penalty, including drink-driving, intentional damage (vandalism), possessing cannabis and disorderly behaviour.

Any visa holder who gets a conviction in the first two years of their residency period automatically receives a deportation liability notice.

Insurance fraud bureau manager Yvonne Wynyard says any conviction is a marker of a propensity to...
Insurance fraud bureau manager Yvonne Wynyard says any conviction is a marker of a propensity to make bad choices. PHOTO: SUPPLIED
To get a new visa, they must get a "character waiver", which are granted by Immigration NZ on a case-by-case basis after assessing their probability of reoffending.

However, the waivers are not usually granted for violent, drug, dishonesty or sexual offending, dangerous driving, drink-or impaired driving in the past five years, or offending for which you could have been sentenced to three months’ prison or longer.

Successful or not, the process is stressful, expensive and lengthy.

First offenders had a good chance of getting one, but not the second time around, immigration consultant Tuariki Delamere said.

Appeals to the Immigration and Protection Tribunal, on the grounds of exceptional humanitarian circumstances, were usually only successful in the case of someone with a New Zealand citizen family, Mr Delamere said.

Appeals to the courts cost thousands of dollars, were rarely successful and only delayed the inevitable.

He believed most migrants understood they could be deported for even a minor conviction, but that did not stop many, especially young men, from doing stupid things.

"When you’re young, nothing’s going to happen to you, they think.

"Then they find themselves in court and it dawns on them they could be deported."

Migrants had to live their lives with an awareness of how much they had to lose if they stuffed up, he said.

"If you’ve been done once, and you’re caught again, it’s hard to have sympathy.

"My sympathy is with their family, if they’ve got one."

Insurance issues

Although the clean slate rules apply, applicants for any type of insurance are asked if they or anyone else they want to insure under the policy have convictions.

For existing policies, they are obliged to tell their insurer immediately about a conviction.

Depending on when they make such a disclosure, the provider may refuse to pay part or all of any claim they make, and may even treat the policy as having never existed.

If they refuse to continue insuring them, they may find it difficult to get insurance from other providers in the future, as all claims are entered on a shared industry database.

Immigration consultant Tuariki Delamere: "They find themselves in court and it dawns on them they...
Immigration consultant Tuariki Delamere: "They find themselves in court and it dawns on them they could be deported." PHOTO: GUY WILLIAMS
Insurance Council of New Zealand insurance fraud bureau manager Yvonne Wynyard said it was not impossible to get insurance after a conviction, but it was "very, very difficult".

"If you do find an insurer, you’ve got to be prepared to pay a higher premium."

Dishonesty offences like fraud were of most concern, but any conviction was regarded as a risk to an insurer’s business.

The council, which represented the providers of about 95% of the country’s general and fire insurance market, lost an estimated $800million-plus through fraudulent claims last year, Ms Wynyard said.

Its members had to assess the risk of a customer making a fraudulent claim, and a conviction was a marker of a person’s "integrity and honesty" and propensity to make bad choices.

A place to live

One knock-on effect of being unable to get insurance cover is the inability to get a home loan.

Westpac consumer banking and wealth general manager Mike Norfolk said it did not ask home loan applicants to disclose criminal convictions, but house insurance cover was a requirement for home loans.

Convictions are also a red flag for property managers when assessing applicants for rental accommodation.

Along with credit checks and references from previous landlords, criminal records are assessed before property managers make recommendations to their landlord clients.

Harcourts Queenstown property management business manager Paul Hibbett said the checks were a routine part of the vetting process, and a conviction "of any kind" was part of the picture when shortlisting applicants.

Travelling hassles

The Clean Slate Act might tidy up your criminal history in New Zealand, but does not apply to foreign governments and their immigration agencies.

At worst, you may be barred from entering a country for travel or work, while at best, you are forced to go through the rigmarole of disclosing your convictions between a month to three months before you travel, in order to get permission to enter.

Even countries for which New Zealanders do not need a visa, such as Australia, require you to disclose your convictions, and if you have been imprisoned for more than a year, you will have to apply for a visa.

Usually, countries consider visa applications on a case-by-case basis, looking at the seriousness of the offending, whether it has been persistent, and how old the convictions are.

Clean Slate

• If seven years have passed since your last conviction, the Clean Slate Act allows your convictions to be wiped from your criminal record, although they remain visible to the police.

• The Act may not apply for some jobs for which you have to disclose your full record, such as the police, armed forces, doctors, lawyers, prison or probation roles, teachers, jobs involving vulnerable people, and those with professional licensing bodies.

• It also does not apply if you have been in prison, convicted of a sexual offence, have not fully paid money required by a court order, or been indefinitely disqualified from driving.