VIC Bill For Spent Convictions Framework Awaiting Assent
Victoria is currently the only Australian jurisdiction without a legislated framework for spent convictions. The Spent Convictions Bill 2020 (‘the Bill’), which was passed by the Legislative Council on 18 March 2021 and is currently awaiting assent, seeks to change this.
The Bill was introduced in the Legislative Assembly by then Attorney-General Jill Hennessy. The stated purpose of the Bill is to “establish a scheme for certain convictions to become spent in Victoria and non-disclosable on a person’s criminal record unless in specific circumstances”.
Criminal Records for Minor Offences have Lasting Effects
Ms Hennessy opened her second reading speech in the Legislative Assembly with the statement that “people who have worked hard to turn their lives around deserve the opportunity to move on from minor historical offending”. She noted that as it stands, there are several ways in which a minor offence on a criminal record, even from years earlier, can govern a person’s life. The Attorney-General listed some possible effects, including:
- A criminal record is a barrier to gaining and maintaining employment
- A criminal record can bar one from entering an industry where there is a ‘good character’ test
- A criminal record can prevent one from accessing courses at universities or TAFE
- A criminal record is a “black mark” on housing applications.
Ms Hennessy added that apart from these tangible effects, a criminal record “can mean a lack of hope, a lack of belonging and a feeling of being marked as an outsider” and that “to exclude such a person from fully participating in society, despite having demonstrably turned their life around, actively discourages rehabilitation”.
The scheme proposed by the Bill, should it be assented, will function in four main ways:
- Convictions may become spent either automatically (for eligible convictions) or through an application process;
- Information about spent convictions will be allowed to be collected or disclosed only in limited circumstances, such as in situations where it is “necessary to allow efficient and effective administration of the justice system and protect community safety”;
- Unlawfully disclosing a spent conviction, or unlawfully obtaining information about a spent conviction will be an offence; and
- The Equal Opportunity Act will be amended to prevent a person with a spent conviction from being discriminated against on the basis of that spent conviction.
The Bill details information about which convictions are eligible to be spent automatically, and in what circumstances this may occur. The Bill would provide that convictions with a sentence of 30 months imprisonment or less will be eligible to be spent automatically after a period of no serious re-offending lasting 10 years for adults, and 5 years for children and young offenders.
Ms Hennessy noted that the scheme proposed by the Bill seeks to strike a balance between allowing past offenders to rehabilitate, and acknowledging the need to protect the community from danger. Therefore, the Bill provides that individuals with serious convictions, defined as “sexual offences” and “serious violent offences”, would not be eligible to have their convictions automatically spent.
The Bill seeks to provide that in certain limited circumstances, individuals with an ineligible conviction may be able to apply to the Magistrates’ Court of Victoria to have their conviction spent. However, there are strict criteria outlined by the Bill that which govern whether a person may apply, and after that, there are several criteria that the court must consider before granting an order. Ms Hennessy summarised these criteria as including “the personal circumstances of the person, including any demonstrated rehabilitation, against any risk to public safety …”.
Benefits of this Proposed Scheme to be Felt Particularly by Vulnerable Australians
Ms Hennessy emphasised that the proposed Bill will contribute to reducing the over-representation of Indigenous Australians in the criminal justice system, given that the Bill, should it be assented, will make progress towards “removing barriers to self-determination, removing stigma associated with criminal records and increasing employment and educational opportunities”.
The proposed Bill will also contribute to ensuring that children and young people who have committed crimes will not be prevented from rehabilitating and “re-integrating into society as an adult”. Ms Hennessy stressed the importance of young offenders being able to move on from their past convictions, “because education, employment and housing are crucial for their development”. She continued to state that the consequences of having a criminal record for minor offences committed as a child could mean that a pattern of offending may continue into adulthood.
Furthermore, victims of gender-based violence, particularly Indigenous women, Ms Hennessy said, are also over-represented in the criminal justice system, and thus the proposed Bill will allow for the removal of barriers to housing and employment, which are “exacerbated by having a criminal record”.
A media release from the Victorian Government explains that the proposed Bill brings “hope” and a “better chance” to Victorians who want to turn their lives around, because, should the Bill be assented, they will no longer have to carry the “unfair burden of a minor historical offence”.
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.
Spent Convictions Bill 2020 (Vic), second reading speech and other materials available from TimeBase's LawOne service.