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Spent Convictions Bill 2020

Victoria has waited too long to legislate a spent convictions scheme. Now we have finally decided to act, it is vital that we adopt the most effective system, especially when the data show the prison system is increasingly failing to rehabilitate troubled kids.

On behalf of the Greens I am happy to be supporting this Bill to legislate a spent convictions scheme in Victoria. Considering the progressive utopia of Queensland legislated convictions in 1986, it is a pity Victoria did not get onto this sooner. Many people and groups have fought for this change for so long, particularly Aboriginal and Torres Strait Islander organisations, including the Victorian Aboriginal Legal Service and those involved in the Woor-Dungin justice project. Other advocates include the Law Institute of Victoria, Liberty Victoria and the former Greens spokesperson for justice, Sue Pennicuik, and Fiona Patten, who both introduced private members bills for spent convictions. 

In many ways I think the changes proposed to the Equal Opportunity Act 2010 in this bill today are as significant as the spent convictions scheme that is legislated. When the Equal Opportunity Act was rewritten, now over a decade ago, Sue Pennicuik in the other place also moved amendments to prevent discrimination on the basis of a person’s irrelevant criminal record. It is a pity that those amendments were rejected by the previous Labor government. We know that Aboriginal and Torres Strait Islander people are disproportionately in contact with the criminal justice system as a result of racism, disadvantage and injustice, so the inexplicable failure of the government to include criminal records as protected attributes under the Equal Opportunity Act before now has permitted racial discrimination towards many Aboriginal Victorians, contributing to their ongoing disadvantage in obtaining housing and employment. I acknowledge all those who have worked so hard on this issue despite 10 years of government apathy and delay.

Because of misleading media, I should also clarify what a legislated spent conviction scheme does, and I acknowledge the contribution of the member for Frankston on this. This scheme will not completely wipe clean anyone’s full criminal record; rather it legislates when and to whom a criminal record can be disclosed. Historical offences will still be disclosed when they are relevant to certain organisations, such as the licensing and accreditation regimes of some professions, the public sector and our law enforcement and anti-corruption agencies. In practical terms this is not new. An unlegislated, selective disclosure scheme for criminal records has long operated in Victoria, determined by Victoria Police under its information release policy. The significance of this bill today is that it seeks to shift the rules regarding disclosure of a person’s old criminal record from the obscurity of an opaque and highly discretionary internal policy into a consistent set of rules established in statute.

A legislated scheme will, I hope, operate with improved transparency and consistency, and importantly this will maximise the chances of the scheme achieving its intention—that is, to motivate rehabilitation and promote reintegration of historical offenders and ultimately to prevent reoffending. That is why I challenge members of the opposition who are concerned that somehow this interferes with justice being done to victims. I think that if the goal of the bill is to prevent reoffending, that is entirely consistent with providing justice to victims, and someone’s criminal record is independent of the sentence that they have served. This is altering the disclosure of their criminal record rather than how much time they serve in prison or what other penalty they pay, and it is important not to blur those two things.

Basically there are only two key elements to a spent convictions scheme. The first is defining what criminal offences are eligible to be spent, and the second is determining how much time needs to pass before these offences can be spent. Despite proposing the newest spent convictions scheme in the nation by far, this bill is actually relatively conservative in defining both of these elements. Convictions for offences with sentencing outcomes of 30 months, or 2½ years, of imprisonment or less will be eligible to become spent automatically. The crime-free period for an offender to have their convictions spent automatically, defined in the bill as the ‘conviction period’, will be set at 10 years for adults and five years for children. Offences resulting in findings or orders imposed by the courts without conviction are immediately spent. Also immediately spent are convictions for offences committed by very young children aged between 10 and 14 years. Here I must observe that it is unconscionable that Victorian law has not progressed from the medieval belief that a child as young as 10 can be found to have criminal intent. The provision in this bill to some degree recognises this in spending these convictions automatically.

Returning to the scheme before us, sexual offences and serious violent offences cannot be automatically spent, but individuals with certain convictions defined as serious convictions that are not able to be automatically or immediately spent may apply to a court to have their conviction spent if the sentence was under five years. I support this, and again we would oppose the opposition’s amendments to remove that. This scheme may play a small part in helping to rehabilitate the lives of people who have committed historical lower level offences and who want to fully reintegrate into society to pursue crime-free lives. Nowhere is this needed more than in the lives of the disadvantaged. Women, people who are homeless, Aboriginal and Torres Strait Islander people and children are groups more likely to come into contact with the criminal justice system for minor offences, often as a result of ongoing trauma, abuse, neglect and poverty. Shamefully the incarceration of these vulnerable groups has accelerated at a much higher rate than that of the rest of the population under the current government. The gap is actually getting wider. I acknowledge here the comments of the Minister for Aboriginal Affairs recently on this very point. She raised concerns that the number of Aboriginal people entering prison is higher than it was a decade ago—four times higher than it was a decade ago. Most of these Aboriginal prisoners will be released within three months. They are cycling through underperforming prisons because we have chosen to deal with issues like drug abuse, homelessness and mental illness through temporary incarceration rather than addressing the causes of crime.

The Andrews Labor government has also set another unwanted record—by doubling the number of children being held in pre-trial detention on remand, mostly for reasons like their not having a safe home. Incredibly, two-thirds of these kids will not go on to be sentenced to prison time. In practical terms, you could say they are being effectively falsely detained. Almost 50 per cent of these kids come from disadvantaged minority groups, and two-thirds are victims of abuse and neglect. Fifty-one per cent of children in residential care will be involved in the criminal justice system within just a year.

Now, the Attorney-General spoke of the stigma of imprisonment. Nowhere is this more apparent than in children. It is called ‘adopting a criminal identity’, and children who experience detention will often try and live up to it. Once on remand, these kids are more likely than not to reoffend and head towards a lifetime of crime. This is why when this government came to power 53 per cent of children who had been in detention would return to detention within just 12 months and now it is 60 per cent. More kids remanded without cause means more kids falling into this cycle.

Right now, the adult recidivism rate is also rising, indicating the systemic failure to provide effective rehabilitation, due to being swamped with dealing with huge numbers of unsentenced minor offenders cycling through prisons for short periods. The government has been spending billions but failing to get results and failing to get smarter on crime. So if we do not change course, a generation of Victorians will be unsafe from lifelong reoffending.

I would like to take a small step to address the worsening rates of youth reoffending under this government. I would like to see a shorter waiting period for children under 18 before their conviction is spent than the five years stipulated in this bill. Instead it should be two years. Therefore under standing orders I wish to advise the house of amendments to this bill and request that they be circulated.

Greens amendments circulated by Dr READ under standing orders.

The amendments will bring Victoria in line with the Western Australian scheme, shortening the crime-free period for those under 18 to two years—while for young offenders aged 18 to 21, the conviction period will remain five years—recognising that this group are yet to fully develop psychosocially and so normally have more potential to rehabilitate. The conviction period for adults also does not change.

The amendments create a scheme that is more targeted to the offender profile and so greater opportunities for rehabilitation. I reiterate: the amendment to lower the conviction period does not involve changing the length of a sentence or reducing the punishment of the courts. It is only about how long a child has to wait before their criminal record does not have to be disclosed on things like an application for a low-risk job, so they have a better chance of reintegrating in the community—or when they are applying for a flat to rent.

For a teenager, even two years feels like forever—and it is, as compared to the time they have been alive. With child offenders, there is only a very small developmental window available in which we can intervene in their lives and assist with rehabilitation. We have to seize this opportunity to prevent them from believing in their criminal destiny. We must remove all barriers that are built up against their education and self-esteem and getting future employment. Currently the data shows child offenders are highly likely to reoffend, the reoffending escalating in seriousness so they will likely be in and out of jail for the rest of their lives.

Victoria has waited too long to legislate a spent convictions scheme. Now we have finally decided to act, it is vital that we adopt the most effective system, especially when the data show the prison system is increasingly failing to rehabilitate troubled kids.

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Dr Tim Read
Greens MP for Brunswick
18 February 2021



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