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Spent convictions: LIV optimistic on scheme to wipe criminal slate

Spent convictions: LIV optimistic on scheme to wipe criminal slate

By Karin Derkley



After decades of advocacy, Victoria is close to getting a scheme to expunge old convictions for minor offences.

Thirty years after Queensland became the first state in Australia to wipe clean old criminal records, Victoria is in the middle of an inquiry into bringing about its own legislated spent convictions scheme.

Victoria is the only state in Australia that still does not have such a scheme, LIV criminal law section co-chair Melinda Walker told the Legislative Council Legal and Social Issues Committee inquiry into a legislated spent convictions scheme in May. 

A spent conviction scheme would simply align Victoria with the other states and territories, Ms Walker said, and would prevent ongoing discrimination against Victorians whose records of previous minor convictions continue to hold them back years after they last offended. 

“That discrimination can span employment prospects, insurance eligibility [and] housing . . . which are significant issues for people in order to further their rehabilitation and redemption to the community,” Ms Walker said.

The inquiry is being chaired by the Reason Party’s Fiona Patten and those participating are optimistic it means Victoria is close to getting a spent convictions scheme and the question now is what it will look like. 

But in a state generally known for its progressive law and order policies, why has it taken so long to get to this point? It has not been considered a radical proposal in other jurisdictions.

It was under the conservative Joh Bjelke-Petersen government that Queensland’s scheme was introduced in 1986. At the time, the Attorney-General Neville Harper said it would remove “the blemish of a criminal record, which places in jeopardy future prospects for full participation in the life of the community”. 

Two years later Western Australia brought in its own scheme, reasoning that “people should have the opportunity to be relieved of the social stigma and other consequences of a criminal record where that is justified by a blameless conduct for a lengthy period”.

The Commonwealth introduced a scheme in 1989, and New South Wales in 1991 under the Liberal Greiner government. The Northern Territory, the ACT and Tasmania have all followed suit, with South Australia the last to bring in spent convictions legislation in 2009. Each jurisdiction has a slightly different regime, but all take as their foundation the belief that people shouldn’t be unfairly disadvantaged by the ongoing stigma of old convictions. 

While the lack of a spent convictions scheme here in Victoria seems, as Ms Patten describes it, “ridiculous”, it has certainly not been for want of trying. 

Criminal lawyer Bill Doogue, long a member of the LIV's working group on spent convictions, says the effort to bring in a scheme here has been going on “for decades”, driven by advocacy groups such as the LIV, the Fitzroy Legal Service, the Human Rights Law Centre, the Federation of Community Legal Centres, Liberty Victoria, the Victorian Aboriginal Legal Service and community organisation Woor-Dungin. 

Back in 2004 the LIV promoted a model bill for a national uniform spent convictions scheme, but the proposal was not taken up by the other jurisdictions. When it became clear Victoria would have to establish its own scheme, the Labor government introduced a bill in 2009, but it was not taken up by the incoming Baillieu government.

In 2014, the Victorian Labor Party made an election commitment to look into a scheme. When that promise seemed to fall by the wayside, the LIV made another submission in 2015, urging then Attorney-General Martin Pakula to enact a Victorian spent convictions scheme until a federal uniform scheme could be developed.

In 2017, the Greens MLC Sue Pennicuik brought in a private members' bill to introduce a spent convictions scheme, but the bill did not get past its first reading. In May 2017, Liberty Victoria’s Rights Advocacy Project put out another call to bring in a scheme. The LIV also continued to advocate for a scheme, including a recommendation for a spent convictions regime in Victoria in its Call to the Parties before last year’s election. 

One of the factors standing in the way of a legislated spent convictions scheme has been Victoria Police’s information release policy, says RMIT University Professor of Law Bronwyn Naylor. On the face of it, this operates as a de facto spent convictions scheme in that it recommends that information about previous offences should no longer be released after 10 years for adults and five years for minors under 18.

But, as Professor Naylor points out, because the policy is not legislated, it is discretionary. “The problem with the Victoria Police policy is the lack of clarity – you just don’t know if a matter is going to be disclosed or not.”

Under the policy, convictions are not permanently removed from a person's record, and it is up to Victoria Police whether they release information. The policy specifically allows criminal history information older than 10 years to be released for the purposes of things like people applying for IVF treatment, registering as a teacher, as a nurse or paramedic, as a bus driver or even as a marriage celebrant.

“We’ve seen all too many examples of how that discretion has played out,” Ms Patten says. "You want to give people surety and confidence that their convictions have been spent and that they’re not going to suddenly get a surprise.” 

The other problem with Victoria Police’s policy is that it includes on its criminal histories offences for which a person has pleaded guilty, even when the magistrate has decided not to record that as a conviction. That undermines the intention of the courts to give people a second chance, says Mr Doogue. “What is the point of a non-conviction if they’re still going to release that information?” 

Meanwhile the number of police checks continues to escalate, driven by the fact that police record checking has become easier and more accessible, and by employers and organisations fearing they will look negligent if they don’t conduct police checks on staff and volunteers, says Professor Naylor. In 2017-18 police conducted 716,768 police record checks, up from 490,000 in 2010-11.

“It's all about managing risk, but it’s a significant knee-jerk reaction,” she says.

Professor Naylor says she became concerned about the impact of police checks when she was on her children's school council and there was a call for checks on parent volunteers. “I thought this was extremely dangerous for parents who may have old police records for smoking dope or being part of a political protest or even for minor shoplifting when they were young. It seemed a terrible overreaction and risked excluding vast numbers of people with very minor offences.

“While I understand the importance of community safety, I think there are other ways we can achieve that other than by subjecting everyone to police checks.”

The impact of those discretionary police checks has fallen particularly heavily on Aboriginal people, Professor Naylor says. “Aboriginal people are much more likely to have some sort of a criminal record because of over-policing and over-criminalisation because of the impacts of colonisation and the stolen generations.”

That impacts not just on their ability to get a job, but also on their ability to be involved in important community programs such as kinship care programs which place at-risk Aboriginal children with members of the Aboriginal community.

Despite the shortcomings of the Victoria Police policy, it served to take the edge off the urgency of getting a spent convictions scheme, Ms Patten says. “But it needs to be cleaned up. There needs to be legislative control and it needs to be formalised.” 

Mr Doogue credits Ms Patten with getting the momentum up to bring on the current inquiry. “It probably wouldn’t have happened without Fiona Patten picking it up and running with it. We specifically lobbied her on it. “I was approached by the LIV, Fitzroy Legal Service, Liberty Victoria and others around this issue,” Ms Patten says. “It just seemed so ridiculous that everyone had one and we didn’t. I was determined that the first thing I did this term was get it off the ground.”

While Ms Patten’s private members' bill did not progress through Parliament, she says she is happy it prompted the inquiry she is now chairing. “It's clear that everyone is supportive of a scheme. Now it's just about what it will look like.”

The inquiry is canvassing the views of a number of organisations along with the LIV, as well as hearing the testimony of individuals who have been impacted by their criminal record and examining the schemes already in operation in other states. The questions now will apply to which types of offences should be allowed to be spent, the waiting period before which convictions are considered spent, and the mechanism by which they will be spent. 

Ms Patten’s original bill recommended that sentences of less than six months be automatically spent, with the option to apply to a court to have longer sentences expunged. The LIV has recommended the scheme apply to sentences of up to 30 months (except in the case of sexual offences), and that convictions are automatically spent after the agreed waiting period (10 years for adults and three years for minors) or immediately if a court dismisses a matter without recording a conviction. 

“Our bill was probably a bit too conservative,” Ms Patten says. “I was looking for a bill that would be successfully passed and receive bipartisan support. But I think we will see a change to that as a result of the inquiry process.”

Professor Naylor and Ms Patten, along with the LIV, say there is also a need for equal opportunity legislation to ensure convictions that are irrelevant to a job or voluntary role are not a factor in assessing a person’s character or fitness for that position. 

The committee is required to report its recommendations to the government by the end of August. The government has six months to respond to the inquiry.

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