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From: Brett A Halliwell Sent: Wednesday, 19 June 2019 8:53 AMTo: spentconvictionsinquiryCc:Subject: Submission to the Inquiry into a Legislated Spent Convictions Scheme for VictoriaAttachments: Submission to Spent Conviction Inquiry Brett Halliwell and David Jones 18 June

2019 .pdf

Parliament of Victoria, Legislative Council Legal and Social Issues Committee Inquiry into a Legislated Spent Convictions Scheme (Amended)   Dear Chair and Committee members.   Please find the attached submission for the Inquiry into a Legislated Spent Convictions Scheme for Victoria.   We are grateful for the opportunity  to present this submission,  which strongly supports the introduction of spent conviction legislation to prevent the widespread discrimination which currently occurs in Victoria against people who carry findings of guilt and convictions.  The passing of legislation by the Victorian Parliament will end over 30 years of inaction on this issue, bringing Victoria into line with every other State, Territory and Commonwealth jurisdiction in Australia, along with most other overseas jurisdictions.  We believe that punishment for crime should not continue in perpetuity.  Those who have been convicted, served their court‐imposed punishment and demonstrated no recidivism should be afforded the opportunity to seek their rightful place in our community, including the workplace, free from discrimination.   We trust that these important and crucial reforms will be supported by the Parliament.   Brett Halliwell and David Jones.   

 

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Brett Halliwell & David Jones

Tuesday June 18, 2019

The Secretary Legislative Council, Legal and Social Issues Committee Parliament House, Spring Street East Melbourne Vic 3002

Submission to the Inquiry into a Legislated Spent Convictions Scheme

Dear Committee members,

This submission strongly supports the introduction of legislated spent convictions law in Victoria. This submission is made in the capacity of private citizens who are extremely passionate about this issue, one of whom has personally suffered for almost forty years because Victoria remains the only jurisdiction in Australia that has not implemented a spent conviction scheme.

This submission is structured as follows:

1. Executive summary.2. The personal story of David Jones (a pseudonym, adopted to protect privacy).3. Recommended legislative parameters, based on deficiencies in current Victoria

Police (VicPol) policy.4. Privacy, equal opportunity and anti-discrimination law considerations.5. The call for reform.6. Our ask of you, our elected representatives.

We applaud Ms. Fiona Patten and the Reason Party for introducing a private members Bill to the Legislative Council to legislate for spent convictions law in Victoria. We applaud the Legislative Council’s Legal and Social Issues Committee for launching an inquiry into spent convictions legislation. We ask that Parliament sees the journey through and finally passes spent convictions law in Victoria.

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1. Executive summary

David’s story provides a personal perspective of the ineffectiveness of current VicPol policies and the personal cost associated with not having a legislated spent conviction framework. It is a fairly typical story of someone who made a mistake by committing a very minor misdemeanour as a young adult, incurring suffering almost 40 years later because the finding of guilt still appears on his criminal record.

The following recommendations are made in this submission:

Recommendation 1. Disclosures are currently based on findings of guilt. Disclosures under legislation should be based on convictions only. Court determinations of ‘non- conviction’, should be spent at the time the non-conviction order takes effect, being either at the time of court decision, or the conclusion of a good behaviour period where no reoffending has occurred.

Recommendation 2. Legislation should distinguish between: (i) non-conviction matters, which should be non-disclosable once the non-conviction takes effect; and (ii) ‘conviction’ matters, which should disclosable and be subject to waiting times to become spent.

Recommendation 3. The legislated spent convictions scheme should distinguish between misdemeanours and indictable offences. All misdemeanour offences should be capable of being spent, subject to a waiting time. Most indictable offences should be capable of being spent, subject to a waiting time and the exceptions noted below regarding the type of crime and length of imprisonment (if any) served.

Recommendation 4. Convictions for indictable crimes which involve an intention to cause serious injury or death, terrorism, drug trafficking, offences against children/vulnerable persons and sexual assault, should be excluded from the spent convictions scheme.

Recommendation 5. We note and support the recommendation of the Law Institute of Victoria1 which proposes that any conviction for which a term of 30 months or more imprisonment has been served should be ineligible to be treated as a spent conviction. We also note this threshold has been applied in the Commonwealth2 and Queensland3 schemes.

Recommendation 6. We support the waiting times for convictions to be spent as presented to the Legislative Council in the Spent Convictions Bill 2009 (Vic), Schedule 1. We propose waiting times for adults of 10 years for indictable offences, 5 years for summary offences, immediate for non-convictions and 3 years for offences committed by minors.

Recommendation 7. It is proposed the legislation allows for a single, mandatory form of criminal history reporting. It is further proposed that the legislation (or regulations) prohibit differentiated reporting based on distinctions between different types of applications, employment types / vocations, or purposes (such as applications for different types of licences).

1 Law Institute Victoria, Submission Introduction of Spent Conviction Legislation in Victoria, April 2015, p 11. 2 Crimes Act 1914 (Cth), Part VIIC. 3 Criminal Law (Rehabilitation of Offenders) Act 1986.

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Recommendation 8. It is proposed that changes to privacy, equal opportunity and/or anti-discrimination laws make it an offence for any employer to seek information from an employee or prospective employee, regarding police matters, criminal charges laid, or court appearances in criminal matters, other than information concerning convictions lawfully recorded in accordance with spent conviction legislation.

2. The personal story of David Jones (a pseudonym, adopted to protect privacy).

David Jones has suffered long-standing despair and frustration as a consequence of Victoria not having a legislated spent convictions scheme. David’s story is as follows:

(a) Facts

In 1979, at the age of 20, David made the foolish mistake of stealing a piece of timber worth less than $5 from a timber yard. David needed some timber to secure a boat to the roof of his car. He drove to a nearby timber yard, which was closed at the time. Seeing an old, worn piece of wood approximately three metres long, David jumped a fence and stole the timber, thinking it was worthless. The manager of the timber yard saw David take the wood, noted his car registration and called police.

David was subsequently charged by police for the offences of theft and being unlawfully on premises. David engaged a solicitor and barrister at substantial cost to represent him in court. He was advised to plead guilty, which he did. The court accepted the guilty plea and entered David into a good behaviour bond.

At the time in 1980 when David received legal advice, he assumed that his criminal record would be clear following completion of the 12 month good behaviour bond. He was shocked many years later to learn that the finding of guilt, without conviction, appeared on his criminal record.

In undergoing a career change in 2015, David undertook retraining as a bus driver. In applying for a role as a bus driver David was required to undergo a Victorian Taxi Services Commission (TSC) National Police History Check (NPHC) for which he consented to the TSC obtaining a copy of his criminal record from VicPol. The CRIMTRAC report furnished to TSC, dated 28 July 2015, disclosed the offences of theft and being unlawfully on premises and also the court result of ‘all charges adjourned to 19/12/1980 on a $200 good behaviour bond’. (Refer Appendix A.)

Because the bus driving role involved transportation of school children, David was also required to obtain a police criminal record check for the purpose of Working With Children (WWC). The WWC check, dated 29 June 2015, disclosed ‘at the date of issue there are no disclosable court outcomes recorded’. (Refer Appendix B.)

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(b) The personal impact on David

While David was successful in obtaining the bus driving job, it caused him extreme shame and embarrassment in having to explain the circumstances of an offence that was committed almost 40 years ago. On other occasions when David has applied for jobs, he has been uncertain whether a criminal record check would be required and if so, what information would be disclosed by VicPol. This has led to ambiguity and uncertainty as to what he should disclose on job application forms. If David discloses no record, and the police check shows a record, he appears dishonest and needs to explain the circumstances. If David discloses a record and the police check is clear, he may have put himself at a disadvantage and will again need to explain the circumstances.

Having recently celebrated his 60th birthday, for almost 40 years David has experienced shame unnecessarily in carrying a criminal record. While he accepts full responsibility for his action in committing a misdemeanour at the most minor end of criminal scale, he carries the firm belief that a mistake made in the early years of adulthood should not create a permanent blemish on his police record for the remainder of his life.

At best, David has felt annoyed and frustrated for decades. At worst, he has felt helpless, angry, in despair and discriminated against, the victim of a legislative vacuum that exists only in his home state of Victoria. David recently said to the author that the introduction of spent conviction legislation in Victoria will allow him to go to his grave without the shame of a criminal record hanging around his neck as a silent, ever-present noose.

(3) Recommended legislative parameters, based on deficiencies in current Victoria Police (VicPol) policy

It is our understanding that the release of criminal record information in Victoria is currently based on an internal policy determined by VicPol (refer Appendix C). In our view the current policy leads to inconsistent outcomes, such as in David’s circumstances outlined above - where in relation to an application for a single job as a bus driver, the TSC check disclosed a finding of guilt dating back almost 40 years, while the WWC check disclosed no findings. We are of the view that the current VicPol policy settings are inappropriate and result in widespread discrimination affecting a significant proportion of the Victorian population. On our hypothesis, more than 500,000 people apply for criminal record checks in Victoria each year,4 of whom tens of thousands may suffer worry, anxiety or stress because they are uncertain what results VicPol will disclose and of this group, potentially thousands suffer discrimination in employment outcomes. We conclude that the impact is wide-ranging.

In our view it is inappropriate that the power to determine criminal record disclosure should rest in the hands of a government department as an internal policy matter, when the 4 Law Institute Victoria, Submission Introduction of Spent Conviction Legislation in Victoria, April 2015, p 5. In the 2013-2014

year there were 480,000 requests, sourced from the Victoria Police Annual Report, 2013-2014. It is reasonable to assume that this number has increased over the past four years to over 500,000.

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outcome of such policy has a profound impact on citizens, in critically important life events such as obtaining employment.

The current arrangements are a clear case of ‘the fox running the hen-house’. We believe it is necessary for Parliament to exercise its power to make law and to enforce segregation between the functions of law making and administration. VicPol’s role, as an administrative arm of government, should be to implement Parliament’s will, rather than to set the agenda according to its own whim.

(a) Findings of guilt versus convictions

Because the VicPol disclosure policy is based on findings of guilt, rather than convictions, it undermines judicial power in instances where a determination of no conviction has been made by a court. The exercise of independent judicial power, with courts vested with authority to rule that no conviction is to be recorded, is currently being undermined by VicPol’s administrative policy which not only records, but also discloses findings of guilt in such instances, which directly contradicts the courts’ intention.

Further, the VicPol policy indirectly (most likely unintentionally) interferes with the judicial process itself in the hearing of summary criminal offences. It is a fundamental principle in criminal law that a guilty plea should result in some form of sentencing relief. This principle provides an incentive for defendants to plead guilty at an early opportunity, which creates significant efficiency benefits for police and the courts. For many people charged with summary offences, the incentive to plead guilty is to be afforded the potential opportunity to avoid conviction and to thereby avoid a criminal record. If criminal records disclose findings of guilt even where no conviction has been recorded, then the incentive to plead guilty is completely undermined and the defendant has in effect received no benefit. This outcome further undermines independence of the judicial system.

Finally, the current VicPol policy does not meet community expectations. The overwhelming majority of the public would reasonably assume that ‘no conviction’ equates to ‘not recorded on my criminal record’ and ‘will not be disclosed as a criminal record’. The current VicPol policy is clearly at odds with this objective test of reasonableness.

Recommendation 1. Disclosures are currently based on findings of guilt. Disclosures under legislation should be based on convictions only. Court determinations of ‘non-conviction’, should be spent when the non-conviction order takes effect, being either at the time of court decision, or the conclusion of a good behaviour period where no reoffending has occurred.

Recommendation 2. Legislation should distinguish between: (i) non-conviction matters, which should be non-disclosable once the no-conviction takes effect; and (ii) ‘conviction’ matters, which should disclosable and be subject to waiting times to become spent.

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Immediate • Findings of guilt with no conviction • Proven offences with no conviction • Bonds, adjournments and undertakings,

following the completion of conditions • Discharged offences

We note the above proposals differ from the model Spent Convictions Bill 2009 (Cth) (which has not been adopted fully in any jurisdiction) and also the Federal Spent Convictions Scheme.8 These schemes provide a 10 year waiting period for all offences committed by adults, with no differentiation between summary and indictable offences and a 5 year period for minors. In our view, shorter waiting times are appropriate for misdemeanours and crimes committed by minors.

(d) Purposes for obtaining criminal history checks

As demonstrated by David’s case, the current VicPol policy can give rise to inconsistent outcomes, depending on the purpose for which the criminal record check application is made. VicPol imposes different parameters to determine what will be disclosed. Variables are based on: (1) type of employment, such as general employment, WWC, TSC, or industry/professional accreditation; or (2) for purposes such as applying for a firearms, liquor, private security or Australian Financial Services licence. In David’s case, near simultaneous applications for WWC and TSC criminal record checks, pertaining to the same job as a bus driver, gave rise to two different disclosures. Given the parameters which applied to David, it is appropriate to question whether taxi drivers in Victoria should give rise to more rigorous disclosure outcomes than child-care workers? Are taxi patrons more vulnerable than infants?

From David’s perspective as an ordinary citizen applying for a job, without knowledge of the unpublished VicPol internal policy or processes, the outcome of the criminal record check feels like a ‘lucky-dip’. David knows that a record exists, but he is unsure and cannot predict whether or not it will be brought to the surface.

Spent conviction schemes exist to prevent people from suffering ongoing discrimination after court-imposed punishments have been completed. Persons who have a conviction should not suffer different degrees of discrimination, depending on what occupation / vocation they choose to pursue. A conviction should either be disclosable, or not (if spent), rather than applying inconsistent rules to different vocations and purposes.

It is recognised that VicPol’s current policy attempts to impose higher disclosure thresholds in areas of employment that involve greater risk of harm to the public. Higher risk exists where persons (including as employees) might deal with more vulnerable members of the community (such as working with children), or where a greater level of trustworthiness is required (such as lawyers or police officers). We contend that such a distinction is not necessary, because the framework discussed above in sections (a), (b) and (c) provides sufficient levels of protection to the public, including those who are vulnerable.

8 Crimes Act 1914 (Cth), Part VIIC.

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Recommendation 7. It is proposed the legislation allows for a single, mandatory form of criminal history reporting. It is further proposed that the legislation (or regulations) prohibit differentiated reporting based on distinctions between different types of applications, employment types / vocations, or purposes - such as applications for different types of licences. The rationale of such a prohibition is to prevent administrative arms of government from creating internal rules that might result in reintroduction of the inconsistencies seen today under VicPol policy.

(4) Privacy, equal opportunity and anti-discrimination law considerations

The Committee’s terms of reference include: (f) offences and penalties that should apply for non-compliance with the scheme, including for disclosing or taking into account a spent conviction where this is not permitted; and (g) interaction between a Victorian scheme and other jurisdictions. The following addresses matters relating to these terms.

We note that the number of criminal record enquiries has grown exponentially in recent years to over 500,000 per annum,9 which has been driven primarily by employers seeking documentary assurance in pre-employment checks. We believe that the purpose of such checks by employers is valid, provided that the information requested and supplied is limited only to information which is governed by the spent convictions legislation.

It is not uncommon for employers to ask questions on employment application forms which go beyond the scope of recorded convictions. For example, employers commonly ask the questions:

• ‘Have you ever been in trouble with the police?’ • ‘Have you ever been charged with a criminal offence?’ • ‘Have you ever been before a court in relation to a criminal matter?’

These questions are highly objectionable, because they undermine the role of courts in determining guilt and making orders to record convictions. From a job applicant’s perspective, the questions cause a dilemma. There may have been no conviction based on one of many reasons, such as no charges being laid, charges dropped by police or DPP, matters not involving charges such as intervention orders, or acquittal. Where there was no finding of guilt or conviction recorded by the court, job applicants who seek to answer these questions truthfully might be forced to answer ‘yes’ and to thereby disclose matters which do not involve any finding of criminal guilt. When employers ask these questions, job applicants are in effect forced into forgoing their right to privacy, which is a denial of human rights.

9 Above n 4.

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Recommendation 8 - We propose changes to privacy, equal opportunity and/or anti-discrimination laws that make it an offence for any employer to seek information from an employee or prospective employee, regarding police matters, criminal charges, or court appearances in criminal matters, other than information concerning convictions recorded lawfully in accordance with spent conviction legislation.

(5) The call for reform

Committee members will be aware that Victoria remains the sole outlier amongst all Australian State, Territory and Commonwealth governments in passing legislation to enable spent convictions. Spent convictions reform in Australia commenced in 1986 with the passing of legislation in Queensland,10 followed by publication of the Australian Law Reform Commission's report in 1987.11 The case for introducing spent conviction legislation in Victoria is overwhelming and has been endorsed universally by numerous respected legal bodies. Such legal bodies, academics and community legal services have produced comprehensive and well-argued reports which all recommend that Victoria should fall into line with other Australian governments and overseas jurisdictions by introducing spent conviction legislation. The following list catalogues a chronological history of organisations which have produced public papers advocating reform:

• Australian Law Reform Commission, Report Number 37 - Spent Convictions, 1987, Australian Government Publishing Service, Canberra.

• Fitzroy Legal Service in conjunction with Job Watch, Criminal Records in Victoria: Proposals for Reform, 2005.

• Law Council of Australia, ‘Model Spent Convictions Bill 2008’, Submission to the Standing Committee of Attorneys-General, January 2009.

• Victorian Aboriginal Legal Service Co-operative Ltd., ‘Draft Model Spent Convictions Bill,’ VALS’ submission to the Department of Justice in response to the Standing Committee of Attorneys-General, February 2009.

• Australian Human Rights Commission, ‘Model Spent Convictions Bill,’ Australian Human Rights Commission Submission to the Standing Committee of Attorneys-General, February 2009.

• Law Institute Victoria, Submission - Introduction of Spent Conviction Legislation in Victoria, April 2015.

• Liberty Victoria's Rights Advocacy Project, A Legislated Spent Convictions Scheme for Victoria: Recommendations for Reform, May 2017.

• An Open Letter to Martin Pakula MP (former Victorian Attorney-General and Minister for Racing), signed by 14 prominent legal bodies, The need for a Victorian spent convictions scheme, June 2017. Signed by:

• Liberty Victoria’s Rights Advocacy Project

10 Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld). 11 Australian Law Reform Commission, Report Number 37 - Spent Convictions, 1987, Australian Government Publishing

Service, Canberra.

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• Law Institute of Victoria • Monash University, Castan Centre for Human Rights Law • Arc Justice • Goulburn Valley Community Legal Service • Moonee Valley Legal Service • WestJustice • Flemington & Kensington Community Legal Centre • Justice Connect • Youthlaw • Fitzroy Legal Service • Northern Community Legal Centre • Southport Community Legal Service • Melbourne Unitarian Peace Memorial Church

It is evident from these reports, produced by respected legal bodies, that the need for reform is important and urgent. The reports clearly describe how the absence of spent conviction law in Victoria leads to widespread and ongoing discrimination. The incidence of such discrimination has increased exponentially in recent years, as it has become common practice for employers and others to seek and obtain criminal record checks. The result is that people who have committed a crime and who have been punished under law continue to be punished indefinitely by way of discrimination.

The absence of spent conviction law in Victoria institutionalises discrimination against those who hold criminal convictions, which is inconsistent with fundamental human rights. The absence of spent conviction law means that thousands of Victorians fail to have their rights upheld, falling outside provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic). Namely:

• Recognition and equality before the law: s 8(3) 'Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination';

• Privacy and reputation: s 13 ‘A person has the right - (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and (b) not to have his or her reputation unlawfully attacked’;

• Right not to be tried and punished more than once: s 26 'A person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law'.

Victorian state governments formed by Labor and the Coalition over the course of more than three decades have failed to address this issue. The current Labor Government, which has been in power since December 2014, now has the opportunity to throw off decades of inaction, procrastination and false-starts by past governments which have failed to address the issue of spent convictions in Victoria. Bills presented to the Parliament in the past have

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Appendix ‘C’ – VicPol Information Release Policy

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