Table of Contents
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."
The Spent Conviction Act 2021 (Vic) ('the Act') brings Victoria into line with other States and territories in Australia.
Three Ways in Which a Conviction May Become 'Spent'
Under the Act, 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 Act 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 Act provides that any findings or orders imposed by courts without conviction are immediately spent following the successful completion of any pre-condition(s) relevant 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 Act that the Court can heard and determine applications for a historical and 'serious conviction to be spent.
The Act 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 Act anticipates that some applications 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 Act 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.
Some Disclosures of Spent Convictions Will Still Occur
The Act (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.
The Victorian Spent Disclosure Legislation Does Not Apply to Commonwealth Offences
It is important to note that the Spent Conviction Act does not apply to Commonwealth offences. Read our article on the Commonwealth spent conviction scheme.
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 Act 2021 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.
Read the legislation:
