Update: Spent Conviction Legislation in Victoria

Updated: Aug 22

Background


In May 2019, the government tasked the Legislative and Social Issues Committee to investigate and report on the possible implementation of a spent conviction regime in Victoria.


The work of the committee and by key parliamentary members advocating for change resulted in the Spent Conviction Bill 2020 (Vic).


The pressing need for spent conviction legislation is evident from the contents of the second reading speech delivered to the lower house:


"Historical convictions for eligible crimes should not stop people from accessing jobs, training, and housing. In too many instances, the stigma of a minor historic conviction has had unjustifiably significant and ongoing impacts, sometimes lasting a lifetime. This stigma is often carried regardless of how minor the offence was or how long ago it occurred. Such impacts of a historical conviction can be out of proportion to what society would consider justified. They can result in a cycle of disadvantage and entrenchment in the justice system and even encourage further reoffending."


As at the 18 March 2021, the Bill has passed through all stages in the House and awaits Royal Assent and commencement.


Victoria is the only jurisdiction in Australia not to have spent conviction legislation.


The Bill brings Victoria into line with other States and territories in Australia.


Currently the release of a criminal record in Victoria is overseen through the application of an administrative policy of Victoria Police.


Broadly speaking, court outcomes (whether with conviction or not) will be disclosed on a background check until a period 10 years has passed from the date of the court outcome (for adults); whereas a period of 5 years for children applies.


Whilst a policy is currently by Victoria Police not to release court outcomes after a period had passed (depending upon the nature of the offence, and the actual outcome), the court outcome (regardless of whether recorded with or without a conviction) remained on a person's record.


Three ways in which a conviction may become 'spent'


The Bill adopts a process whereby a conviction may be 'spent' either:


- immediately.

- are the completion of a conviction period (crime-free period)

- by Order of the Court.


Automatically spent conviction.


The Bill provides that for adults, a conviction will be automatically spent after a period of 10 years has passed since the date of the conviction. For children, a period of 5 years applies. This accords with the periods provided for under the Information Release Policy of Victoria Police.


Convictions that become spent contingent on completion of Court Order


The Bill provides that any findings or orders imposed by courts without conviction are immediately spent following the successful completion of any condition attaching to those orders. An Adjourned Undertaking with a condition to be of good behaviour for 12 months is an example.


Convictions that become spent by Court Order


Whereas in the case of minor offending a conviction may become spent immediately, it is also anticipated under the Bill that the Court can heard and determine applications for a historical and 'serious conviction to be spent.


The Bill defines a 'serious conviction' as a conviction:


- for which a term of imprisonment or detention of more than 30 months is imposed; or

- a conviction of a person for a sexual offence; or

- a conviction of a person for a serious violence offence.


The application must be in the prescribed form and is served upon the office of the Attorney General and the Chief Commissioner.


The Bill anticipates that some application will be more controversial, or complex than others and so provides a mechanism by which applications may be determined by the Court without a hearing unless the Court receives notice from either the Attorney General or the Chief Commissioner of the police that either intends to be heard and make submissions in respect of the application.


Any hearing listed by the Court must be conducted as a closed court proceeding, and the Court must give directions as to who may be present.


In determining whether it is appropriate to make a spent conviction order, the Bill provides that a Magistrate must consider:


- the nature, circumstances, and seriousness of the offence to which the application relates; and

- the impact on any victim of the offence to which the application relates.

- the personal circumstances of the applicant; and

- whether the applicant is an Aboriginal or Torres Strait Islander person and the unique background factors affecting Aboriginal or Torres Strait Islander persons

- the age and maturity of the applicant when the offence was committed; and

- any demonstrated rehabilitation of the applicant; and

- any risk to public safety of making a spent conviction order for the conviction; and

- any other matter the court considers relevant.


The Court may refuse an application if on weighing these various factors they are not persuaded to make the Order. Interestingly, the Bill does not appear to make it a requirement that the Magistrate provide written reasons for the refusal.


The Bill does not specify whether a refusal to have a conviction spent is final, nor does the Bill provide a procedure for review or appeal of a refusal.


Some Disclosures of Spent Convictions Will Still Occur


The Bill (under Table 1) sets out a variety of circumstances under which it is lawful to request a disclosure of a spent conviction. For example:


- Registration and accreditation of health professionals

- Bus driver accreditation

- Working with children check

- Working for a courthouse (Court Services Victoria)

- Firearm licensing


Table 1 contains a complete list of organizations, and the purposes for which a spent conviction can be disclosed.


Preparing An Application for Court


The strength of any application to Court will depend upon its persuasiveness. The persuasiveness of submissions in turn, depends upon the quality of the arguments presented, and the evidence placed in support of those arguments.


Submissions need to be supported with appropriate documentation such as legal reports (pertaining to treatment, or counselling), character references, certificates (training, education, or community involvement)


Conclusion


The Spent Conviction Bill 2020 represents significant reform to Victoria's criminal justice system. It clearly provides many people who have experienced the prejudicial effects of a criminal history to start afresh, and this has clear benefits to the community.


Useful links:


Spent Convictions Bill 2020 (Vic)



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