Spent Convictions Bill 2020

I will begin by saying that I am pleased with most parts of the Spent Convictions Bill 2020; however, I am disappointed with others.

Firstly, I would like to say I am a full member of the Legislative Council Legal and Social Issues Committee. As other speakers have said, it was the work of that committee on the spent convictions inquiry throughout 2019 that provided the impetus for the introduction and design of this bill. In the course of that committee work we spoke to many people and analysed and contemplated numerous challenging issues, questions and complexities in these areas of policy and law. Overall, I have to say, I emerged from the committee process very moved by the spirit of cooperation that was evident throughout our work and genuinely pleased that we had come together so effectively during that inquiry. As individuals, some did not come to address these issues from the same starting points, and notwithstanding, there was ultimately a short minority report written for inclusion in the final report. In that sense I do want to take this opportunity to personally thank and pay tribute to the committee staff, led by Lilian Topic, and my fellow full members of the committee, Ms Patten as chair, Dr Kieu as deputy chair, Ms Garrett, Ms Vaghela, Ms Lovell and Mr Ondarchie.

For my part I will readily confess that I approached the inquiry with some scepticism about what the introduction of a spent convictions scheme might mean, particularly for businesses and for victims of crimes and their families. In hindsight I also think that the compilation of our witness lists for the hearings could have engaged more victims of crime and representatives from employer organisations. Otherwise, the committee process broadly did exactly what a committee process should do. It certainly opened my eyes and made me see and think about the specific issues involved from a number of different views. It allowed me the opportunity to consider other people’s perspectives, and it ensured that many of the initial concerns and apprehensions were somewhat allayed. For my part what also became increasingly evident was that in many cases the system of criminal record checking in Victoria does generate a stigma for people who have committed a minor offence.

In the absence of a spent convictions regime, this stigma stays with many Victorians—if not on a lifelong basis then certainly beyond the time and/or penalty that they have paid through the legal system for their offence. It is true not only that some of their opportunities in life are disproportionately affected but also that these difficulties have become more prevalent as the use and general ease of access to criminal record checks has grown.

Even before the committee hearings themselves had begun, the need to address these stigmas was something I discovered from reading about other jurisdictions’ use of spent convictions schemes. I learned that their existence in common-law countries actually stretched all the way back to 1974, when the UK introduced legislation called the Rehabilitation of Offenders Act 1974. What I also found to be highly informative and instructive were the personal stories from the many witnesses that appeared before the committee. These were often genuinely powerful and moving accounts, and they certainly affected my thinking in ways that I had not necessarily expected.

As individual members we put our political and ideological differences aside and we approached the inquiry constructively and collaboratively. We genuinely tackled the various issues involved in a multipartisan way. I have to say, too, that I do not think I have heard a single person be anything other than complimentary about our dedicated open mic sessions, which allowed people on an impromptu basis to tell their stories. To be part of those sessions was actually a very moving experience.

By the time the inquiry ended I was confident that our committee’s work would pave the way for a bill that could adequately take up some or all of our 10 recommendations without causing any particular controversy or difficulty to anyone. Some of our recommendations, as we clearly stated in the final report, did require further consultation and in-depth thinking from the government; however, I genuinely felt they were sensible recommendations that everyone could get behind. In the main they enabled a careful and reasonable middle ground. They balanced people with minor convictions being able to make a fresh start, free of criminal taint, against the reasonable interests of many members of the community, particularly potential employers, to have full access to what are ultimately matters of public record.

However, sadly my expectations from back then have not completely been met by what has become the reality now. I say this only in relation to a reasonably small set of provisions. Nonetheless, I am surprised by some of the content of this bill. That is because in my view one aspect of it in particular moves some distance beyond what the committee concluded and recommended. There are also other facets of this that are problematic for a party like mine, which prides itself on prioritising community safety and representing the best interests of victims of crime.

In relation to the content of the bill, I realised that the Attorney-General’s office had some different perspectives to mine. I also do respect their position and arguments, and I do greatly value the time and advice they offered to Derryn Hinch’s Justice Party in discussing this legislation. Unfortunately, though, we have not quite met in the middle on all of that, and I am left with what I regard as an unavoidable conclusion, which means I cannot support this bill in its totality without amendment. That is a truly very hard thing for me to do and say today. I wanted to be able to fully, unequivocally support this bill, and I certainly spent enough hours and drove enough kilometres to participate in the committee meetings on it to desire that result.

Most of all, Mr Grimley and I struggle to support the concept that every serious crime for one class of people will now immediately be wiped from widely disclosable criminal records. This is not something that the committee recommended in any way, and indeed if the majority had recommended this, then I would have written a dissenting report. It is not that I do not understand the thinking and the argument being advanced here; I do. I acknowledge that some people genuinely believe that those below the age of 15 are insufficiently intellectually and morally developed to truly appreciate the difference between right and wrong. However, there is also a very wide range of professional studies that do not support that view at all.

I also struggle to see the consistency in such an argument, given that many of the same people who are advancing it are also supporters of the introduction of a discretionary process for people aged 15 and over to apply to magistrates for their convictions to be spent. I simply do not agree that it is a credible position to say that every single person under the age of 15 sees the world in the same way and perceives the differences between right and wrong in the same way and yet then also assert that, among those aged 15 and over, almost every case is different and needs to be judged on its own individual merits.

As the bill stands it will instantly remove from disclosable records all crimes committed by people under the age of 15. This includes sexual offences, violent assaults, manslaughter and murder. That does not sit well with me at all, and I think it disrespects the victims of these crimes and their families. Such heinous crimes are not trivial matters, and they should not be forgotten about or shielded from the view of most Victorians, irrespective of the ages of the perpetrators. There is enough of an outcry as it is about the comparative overuse in Victoria of suppression orders. That was one of the main reasons, after all, for the establishment of the Vincent review and the development in recent times of the government’s own open courts legislation, yet through this bill we are now moving in the opposite direction again and precluding most of the community from ever finding out about every serious crime committed by any 10- to14-year-old.

Rather than including this directive in the bill we should be focusing on establishing and investing in earlier intervention to prevent these young people offending and reduce the risk of them becoming involved in the youth justice system. I have worked with young people who have had no regard for the law, no regard for others, and with interventions up the wazoo they have still committed extremely serious indictable crimes. That is because the interventions are too little, too late and are not extensively targeted to meet the needs of the young person and their family. On these points and for other reasons Derryn Hinch’s Justice Party will be supporting Mr O’Donohue’s amendments. Unfortunately if those amendments do not pass then we will also reluctantly have to oppose this bill as well.

Mr Grimley and I are also nervous about the implementation of the new application process to magistrates that will potentially see various other kinds of convictions being spent beyond those that will now automatically qualify. We do accept that this process will not start for another six months and that there have been a series of criteria devised to carefully prescribe which kinds of offences can be considered. It is also our hope and understanding that the government will be looking at the practical operation of this process very closely as part of its statutory review at the 12-month mark of this new regime. However, not administered carefully, this process clearly remains prone to many potential problems. One of the most obvious is the capacity for what might be described as the delivery of a double benefit to some offender. Initially favourable sentencing for the offender, including through plea bargaining, can now pave the way potentially for their convictions ultimately to be spent as well. These decisions could also presumably be made by many of the same magistrates who are often making decisions to not sentence such offenders to a long or indeed any prison term in the first place.

Perhaps the most problematic aspect of all, though, is that this new application process will now allow magistrates to approve the removal from disclosable records of crimes for which there was no term of imprisonment. That includes sexual crimes. Something about which Mr Grimley, Derryn Hinch and I often talk publicly is the number of offenders who escape prison terms altogether in Victoria even when found guilty of serious offences. This is indeed something that infuriates many thousands of Victorians. It is a practice evident across a variety of crimes, but one that has been particularly manifest in recent times in the cases of child pornography offences and also violent and sexual offences. Our reading of the bill is that on the basis of current sentencing practices in Victoria, swathes of child pornography offenders will now likely have their crimes hidden from other Victorians. That is disturbing in many respects. Many of the offenders who have already escaped what were meant to be mandatory prison terms for assaulting emergency workers will theoretically now be eligible for their convictions to be spent too.

That is also concerning for us. I realise there would have genuinely been some difficult decisions and choices involved for everyone assigned to the legislative task of creating a spent convictions regime from scratch. In the main they have actually done a very good job. However, I am also left to observe that there has been enough of a drift away from the original recommendations of the committee that it has rendered decision-making on this bill for MPs more difficult than it needed to be—although some we know will still consider voting with the government on this bill.

The balance has accordingly shifted too far in my party’s view. We should not forget that there are very few victimless crimes, no matter whether they are minor or more serious offences. Those victims of crime also often have to wear the consequences for the rest of their lives, and they do not get a free pass or the ability for it to be automatically erased or wiped away from their life.

I am sorry, my fellow members of the Legal and Social Issues Committee, that I find myself having to take this stance. However, as much as I did not want to have to be in this position or to be needing to make this choice, I have in the final analysis no option here but to err on the side of victims of crime and of prioritising community safety as a whole. I thank the house.