Spent Convictions Bill 2020
Ms PATTEN (Northern Metropolitan) (15:51): I, too, am very pleased to rise to speak to this Spent Convictions Bill 2020. When I was thinking about what to say about this bill, I actually found it quite hard to resolve where I would begin on this. Over the last few years I have had a number of opportunities to speak about the controlled disclosure system for historic convictions, many times in this house and also outside, and this bill is similar to the one that was tabled in this house two years ago—on 4 February 2019, to be precise—but, to be honest, this bill is better. This bill is better because the community has contributed to the formation of this one. This bill reflects the testimony of the people and organisations that contributed to the Legal and Social Issues Committee’s inquiry into spent convictions.
And this is the bill you write when you are not the first one off the ranks. Very often Victoria can take the lead in progressive legislation—and we certainly saw that with voluntary assisted dying and we also saw that with medicinal cannabis—but this time we are certainly not the first. In fact we are the last state in Australia to enact spent convictions legislation. It is so fundamental, and I think, as Ms Shing said, it is so important to also recognise redemption in our justice system. This is a crucial part of our justice system. It confirms our commitment to rehabilitation, not just punishment, and, frankly, we should have done it years ago. For many people today a criminal conviction is a life sentence. Sometimes it was a small idiot action, and sometimes it was something more serious. But it was just part of someone’s life. That moment in time should not define them, and that is what this spent convictions legislation will do. It will change the lives of many now and into the future.
I would like to acknowledge all the people that have been part of the campaign to have spent convictions legislation in Victoria, and there have been many. There have been dozens and dozens of organisations. We heard from scores of individuals who were willing and brave enough to come forward and tell their stories, but I also particularly want to acknowledge my office.
We wrote the first spent convictions bill in 2019. We worked on that; we worked with the community on developing that bill. It was a modest bill—and as a crossbencher quite often you do want to do something modest, because you actually want to try and get it passed. We were not successful in getting it passed, but what we did get was this inquiry into restricted disclosure of past convictions—and that inquiry is all through this bill. The recommendations of that inquiry are on nearly every page of this bill. There are some areas where they are not and there are some areas where I think we still have some work to do, but that is not necessarily in legislation. So I thank Andrew Shears from my office, who worked very hard to get this to this Parliament. I think we certainly gave the first step for this Parliament to be here today to pass a spent convictions bill in Victoria.
The bill largely reflects the recommendations of the committee, but that was also because of the incredibly thorough work of the Woor-Dungin criminal record discrimination project. I really want to acknowledge their work, and I would commend their report on criminal record discrimination. It is a terrific report. It has the voices of those with lived experience throughout it, and the work that they did, the way that they were able to collaborate and work with just about every single Aboriginal organisation in Victoria showed how important it is to our Aboriginal people. I am very pleased that their work is reflected in this legislation, and I think that very much goes to our commitment to self-determination.
As members have attested before, the inquiry process really was extraordinary. For the first time this Parliament had an open mic night where we invited people to come up. They did not have to give their actual names, but they could tell their stories—and they could tell their stories of how historical criminal convictions affected their lives and how the ongoing impact of having to disclose that mistake from which they had been fully rehabilitated still affected their lives. I think Professor Kieu will remember when we had Mr Zed come in. Professor Kieu was interviewing Mr Zed during one of the inquiries—but it was beautiful and it was extraordinary and really, when you consider the amount of interest that that inquiry received, it is testament to the importance of this bill.
You know, I have to regret that the committee did not recommend that the legislation be called something else. I do not know about you, but if you try and explain what spent convictions are out in your community, it generally becomes much more than a 1-minute conversation, because it is a confusing term. It is an archaic term. I wish that we actually had called it a ‘controlled disclosure system for historical convictions’. But apart from that, I will have few negative things to say about this bill.
Let us be clear from the start: this does not mean that your past is erased, and I think this is why ‘spent convictions’ sounds as though somehow you are purged of this conviction. That is not the case. That will never be the case. Your past will not be erased from your record, even if you are a child. It means that in certain circumstances you will not be obliged to disclose certain historical convictions. The bill should be called, as I said, a ‘controlled disclosure bill’, because that is what it is. As I say, your record is not erased; it is not expunged; it just will not be publicly disclosed in certain instances. When applying for a job, your character will be assessed on who you are, not who you were.
This has been a long time in the coming—and as we have heard during the debate, a spent convictions scheme has broad support in this house and of course in the community, because we all generally believe in rehabilitation, we all have some faith in our justice system, we all believe that criminal records should be available to the courts, to the police and to others in certain circumstances and we all agree that people should be able to move on. Where we diverge is actually just where we draw that line. How long should someone carry the record before they can leave it behind?
Sitting suspended 4.00 pm until 4.17 pm.
Ms PATTEN: As I was saying, I think the debate that we are having today is not about whether we have a spent convictions scheme. It is not about whether we accept the fact that people can be rehabilitated or that we can accept the fact that someone’s past should not weigh them down for their whole life. Where we diverge is where we draw the line. We agree, I believe, that children and young people should be treated differently to adults, but again we diverge on where that line should be drawn. This bill draws those lines but also recognises that sometimes it is not black and white.
The bill has effectively created three parts: an immediate conviction being spent, an automatic system and by court application. For my community—and I know when I first started looking at this I was astounded to find that when you went to court and you had a no conviction recorded, that was actually recorded. If you did a police check or a criminal check, a non-conviction would be recorded on your criminal record. That is one of the examples where this bill says that if there is a no conviction recorded, it will be spent with immediate effect. Convictions of children under 15 will also be spent with immediate effect. I know this is the contentious issue for a number of people in this chamber, and I will certainly speak more about it a little bit later.
For adults who have been convicted of a crime and sentenced to 30 months or less, their conviction will automatically be spent after a 10-year rehabilitation or, as it is called in the bill, a ‘conviction period’. Serious convictions are excluded from this, and serious convictions include those that are sexual and violent by nature. For young people, their convictions will be automatically spent after five years. This is in line with current practice in Victoria. It came as a surprise—and I know Mr O’Donohue mentioned this in his contribution, and I think Dr Kieu did as well—that the police have been running their own spent convictions scheme with their own policy, just they kind of made it up themselves.
I must say it came as a bit of a surprise when we were hearing about this—‘Oh, we’ve been running this for years. We’ve had our own spent convictions scheme. Here, let me tell you all about it’. And actually in many ways this bill reflects the way that they have been operating, but this ensures that that system operates absolutely to the letter, because with the police system, while it was a policy, there was also, it would appear, an awful lot of discretion in that policy as to what police disclosed and what they did not.
Now, the third avenue to have a conviction spent is by application to the court, and the application can be made to the Magistrates Court. This is not a simple process. This is not a tick and flick or filling in an online form at Service Victoria. This is restricted to convictions where the sentence imposed was less than five years and the conviction period has expired—that is, after 10 years. The applicant must provide information, including on supportive rehabilitation. The application that is then lodged with the Magistrates Court must be served on the Attorney-General and the Chief Commissioner of Police. Either office can make a submission to the court on that application. Clause 19 of the bill outlines what the court considers in more detail, but it includes the nature and seriousness of the offence, the impact on any victim of the offence, the personal circumstances of the offender and in particular the unique factors affecting Aboriginal and Torres Strait Islander persons. This is largely in line with the recommendations of the Woor-Dungin project, which was endorsed by 60 Aboriginal and non-Aboriginal organisations. This is because it is not black and white. There will be circumstances where it is in the best interests of the community for an offender who has been fully rehabilitated to have their convictions spent.
But again, this is not about wiping the slate. There is a table in part 3 of the bill that runs to four pages that provides a pretty extensive list of where there are specified disclosures, so where historical criminal convictions should be disclosed or will have the effect of being disclosed. Further, division 2 of the bill provides for the disclosure by law enforcement agencies, courts and tribunals. As I said, this bill does not wipe someone’s record. There are numerous circumstances where convictions will always be disclosed and organisations will always have access to a person’s criminal record. So the question comes back: does this bill go far enough? Have we correctly drawn the lines? You know, if I were some form of benevolent dictator of this state, I might say no—that this probably is not where I would draw the lines—but I do think that this is a good bill, and I do not think we should let the perfect be the enemy of the good here. There may be parts of this bill that you do not agree with; however, overall this bill is important. This bill is a missing part of our justice system. This is the bill that tells people that they can be rehabilitated, that a sentence is not a life sentence.
But 10 years is a very long time for an Aboriginal person, as we heard from the Woor-Dungin project. Imagine committing a minor offence when you are 22 that will affect your employment opportunities, your ability to travel and even your ability to volunteer. It could put much of your career prospects on hold. We know that employment is one of the best prevention tools to fight recidivism, and we also know that having to disclose a criminal past, no matter how minor, negatively impacts on your ability to get a job. If that criminal record prevents someone from getting a fulfilling job, they risk further offending. This is a loss to the community, but it also perversely makes the community less safe. A waiting period or a rehabilitation period—it is an imprecise science. In fact the committee could find very little evidence on how long that period should be.
The United Kingdom has probably been the most active in this area. They have been assessing this and they have a now a very nuanced system. Their rehabilitation period or waiting period ranges from one year to seven years and it varies from looking at risk factors, rehabilitation opportunities and the seriousness of the crime. So what we have here is a fairly blunt tool that we are using. And we know that recidivism declines over time, and some research out of the US found that most reoffending took place in the first three to five years after arrest. After seven years there was no distinguishable difference in the risk for future offending between those with an old criminal record and those without a criminal record.
Where we draw the line, as I said, is the most contested question in this debate. Some in this chamber have expressed that this bill goes too far. Some may say that it does not go far enough. I mean when is a sentence a life sentence?
Arthur Bolkas contributed to the inquiry considerably. Now, he committed a pretty serious offence for which he was sentenced to 11 years in jail and served 5½ years. While he was in prison, he completed a masters degree in criminology. He has now been tirelessly working in the prison and youth justice systems to support prisoners. He has designed and implemented pre- and post-release programs to help rehabilitate offenders. He has not offended in 32 years. Instead, he has made a contribution to society through his work with offender education and rehabilitation. But this bill will not help him. He will live with that record publicly and disclosable for the rest of his life. And, as he says:
If you are not prepared to give me a chance as an individual—not put me in some sort of statistical basket with everyone else—if you are not prepared to do that, then you need to reassess what you mean when you are asking people like me to become contributing members of our community.
It is a double standard, it is hypocritical and it is wrong.
And I think he makes a good point: if we believe in rehabilitation, then why don’t we believe in the rehabilitation of Arthur Bolkas? Why are we saying that Arthur Bolkas should have a life sentence, where someone may have actually committed a similar crime and may have had less time in jail? He is only six months over the line of where we have drawn the lines.
Mr Erdogan: Get him to apply to the Magistrates.
Ms PATTEN: He cannot apply to the Magistrates, I am afraid, Mr Erdogan, because it is over five years. And I see that Mr O’Donohue and Dr Ratnam will both be putting up amendments to this bill, and these are contesting where those lines should be drawn. But I am satisfied that this bill draws the lines appropriately. I think this bill is modern. It has listened to the community. It has understood that just drawing specific lines may not always be in the best interests of our community, so having an application through the courts for a conviction to be spent is good.
The former victims of crime commissioner, Greg Davies, said to the committee:
In my experience, victims of crime do not necessarily seek the ‘throw away the key’ outcome for offenders who have committed criminal offences against them.
What the vast majority of victims of crime want is to prevent what happened to them from happening to anyone else.
Now, we know that employment, connection with family, housing, drug and alcohol services—that is what we can do to prevent crime. We know our recidivism rates are so high, and we know that employment is one of the biggest protectors from that.
After listening to the contributions from others I just want to make sure that it was very clear that sex offences and serious violent offences cannot be automatically spent, even if the term of imprisonment was less than 30 months, and I heard some people suggesting otherwise. As I say, there is an exemption for children under 15, which has raised concerns in this chamber, and Mr O’Donohue has introduced amendments that reflect this concern.
This was not a recommendation of the committee, but it certainly reflects the many submissions that we received in regard to young people and in regard to ensuring that young people are rehabilitated.
I note that we all received an email this morning from Smart Justice for Young People, a coalition of over 50 agencies, including Jesuit Social Services, Centre of Excellence in Child and Family Welfare and the Kimberley Foundation, all supporting this. After listening to the contributions the other day I actually wrote to the CSA, the Crime Statistics Agency, and asked for information about serious crimes committed by 10- to 14-year-olds. They are incredibly, incredibly rare. They find it even hard to count because there are so few of them. Yes, it happens; I know it happens. We hear about it. But let us not make the exception the law. Let us make the law for the good of the people.
This bill will be profound. It will change people’s lives. It will change the way that people see their sentence in jail. Some of them will see that there is an end game to this, that they start their rehabilitation process the minute they are convicted and that they can continue that process and at the end they can be acknowledged and their conviction is spent.
I have much more to say; I could speak forever on this, but I will not. I would like to give the last word to Uncle Larry Walsh, a Taungurung elder who was convicted at the age of two. He was convicted at the age of two for being a neglected child, and that stayed on his record. In fact he recalled a judge saying, ‘My, young man, you’ve got a very long record. You have got years on it’, and he had no idea. He found out that the first conviction on that long list of convictions was a conviction from when he was two because he was convicted of being a neglected child, and that has actually stayed on his record. Uncle Larry Walsh said to us:
… it is hard to live a life where everyone has respect and admiration for you and then all of a sudden something you did as a teenager is being held against you.
This bill will change that, and I commend the bill to the house.