Removing The Millstone: Victoria's Proposed Spent Conviction Legislation

Updated: Nov 2, 2020

The impulsive act of an individual, or their poor judgment which so often underpins criminal offending frequently results in the recording criminal conviction by a sentencing Judge or Magistrate.

And whilst the purpose of the recording of a criminal conviction is deterrence, the adverse impacts of a conviction on an individual are pervasive and well known and include employment, education, travel, and housing.


In many respects a conviction operates as an enduring punishment long after the offending, and after a long and sustained period of rehabilitation.

In Victoria, the release of a person's criminal history is regulated by the Victoria Police. Under their Information Release Policy, an adult who commits an offence (excluding summary offences under the Road Safety Act 1986 (Vic) and other infringement notice offences), and is sentenced by a Court for that offence, the offence becomes able to be disclosed to a third party (as part of a background check for a period of 10 years. This position is 5 years for children. The convictions are not spent, they are simply not disclosed. Moreover, the fact that a criminal investigation has commenced is also an event which his disclosed as part of a background check. Read the full details of the Victoria Police Information Release Policy here.

A concept which is often misunderstood is whether a court outcome that is "without conviction" forms part of a person's criminal history, and can be disclosed to a third party as part of a background check.

Finally, a "Without Conviction" Outcome Will Mean Exactly That

Currently 'without conviction' outcomes remain on a person's criminal history for the same period as convictions. Whilst a 'without conviction' is a good outcome, and allows a person to lawfully declare that they have not received a conviction (as part of any application for employment, or otherwise), the court event still creates a record that will appear on a background check. The new proposed laws will mean that a 'without conviction' outcome will result in the court outcome being immediately spent. That is, to say that a person will not have to disclose their court appearance (subject to all other conditions attaching to the outcome being followed).

Under the proposed laws, the presumption of innocence extends to not recording the occurrence of a police investigation on a person's criminal history. Currently, the mere fact that a person is simply being investigation for a 'pending' matter is an event which can appear on a background check, and can operate to the prejudice of a person, particularly when no finding of guilt has been made.


Other Routes To Spent Convictions Under The Proposed Law


The Bill provides for several ways upon which a conviction will be immediately spent, the without conviction outcome discussed above being just one way. Where a conviction is recorded for a more serious offence, the Bill proposes that the conviction be 'spent' after a period of time has elapsed which equates to the current period under the Vic Pol Information Release policy (10 years or adults, and 5 years for children)

It is also possible for a person to make an application to the Court for their conviction to be spent, for convictions for offending of a more serious nature.

Exemptions

The Bill allows several regulatory agencies, courts, tribunals and law enforcement agencies, and government court outcomes that might otherwise amount to spent convictions.


Penalties For Disclosing Spent Convictions


Unless an exemption applies, and subject to other criteria outlined in the Act, the Bill prescribes an offence for the unlawful disclosure of a spent conviction.


Conclusion


The new Spent Conviction Bill 2020 (Vic) remedies the unfair operation of how our criminal justice system deals with court outcomes for offenders, and the proposed reforms are long overdue. Providing reformed offenders with a sense of hope that they can cast off their millstone and look to the future with a sense of hope and dignity.


Useful links:


This article has provided a discussion on some important aspects of the proposed legislation, for further background, and to read the detail of the proposed bill click the links below.


2nd reading speech (Spent Conviction Bill 2020 (Vic)

Spent Conviction Bill 2020 (Vic)



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