By Brendan Roberts

Recently, The Police Association Victoria was asked to make a submission to a parliamentary inquiry into a Legislated Spent Convictions Scheme.

Many of the important recommendations made by TPAV were included in a recent report tabled to parliament.

The inquiry was launched by independent Victorian MP, Fiona Patten, who is seeking a scheme by which people with criminal convictions can have certain convictions erased from their record after a period of time has elapsed without reoffending.

Ms Patten told the inquiry that "it was unnecessary for third parties to have access to outdated and irrelevant criminal record information … (which) can erect barriers to employment, education, housing and other opportunities" for those with criminal records relating to offences that occurred in the past. In its submission to the inquiry, TPAV articulated that any benefit of this legislation must be balanced with interests of public safety and justice.

This can be achieved through the application of flexibility and exemptions for conviction histories to remain unhidden in circumstances including information sharing with relevant authorities and during the investigation of fresh crimes.

The need for flexibility

In its submission, TPAV stated that all circumstances need to be considered, and there must be flexibility in application.

The Association argued that eligibility for a conviction to be spent should be based primarily on the type and severity of the offending itself.

However, patterns of offending, including frequency and escalation, are indicative of the propensity to reoffend.

Further, eligibility should involve a lengthy period of non-offending postconviction, with evidence of good character being taken into account.

In the context of police investigations and brief preparation

Further, given the nature of policing, TPAV argued that conviction histories in their entirety must be available for the purposes of police and other emergency services recruitment, police investigations and court related exemptions.

Police require a complete picture of any offence history in order to make decisions during an investigation.

This includes knowledge of all prior offending.

The compilation of a brief often involves the inclusion of similar fact evidence.

Further, in the interests of justice, it is entirely appropriate that any and all proceedings in court are exempt from any legislation pertaining to spent convictions.

Adopted recommendation:

That non-conviction findings of guilt should always be disclosed in the administration of justice.

Courts and the police will always have access to this information regardless of whether it becomes protected information under a controlled disclosure framework.

The need for information sharing exemptions

The legislation, TPAV’s submission stressed, must provide clear information sharing exemptions for police.

There are circumstances in which police will require clear exemptions with respect to the sharing of conviction histories.

Current information sharing practices between Victoria Police and the Department of Health and Human Services in relation to protection applications require transparency of a person’s history to make proper determination, for example placement of a child in their best interests.

This determination requires access to the fullest possible information.

There must be clarity as to both the accessibility of information and any restrictions on information sharing capabilities of law enforcement agencies in any legislated spent conviction scheme.

Application to those subject to Sex Offender Registry or prohibited from carrying a firearm

Police require clear and consistent guidelines with respect to accessing histories for the purpose of international requests for information as applicable to visas.

Those on the Sex Offender Registry, or deemed a "Prohibited Person" under the Firearms Act, must be exempt from having their relevant convictions spent until they are no longer on the list.

Any scheme cannot and should not sit in contradiction with currently operating registers.

Given that persons placed on the Sex Offender Register, or deemed a "prohibited person under the Firearms Act 1996, may be assigned as such for a period longer that the "waiting period" for the conviction that caused them to be on the Register, clear exemptions are required to resolve this conflict.

Precedence must be given to public safety in these instances.

Adopted recommendations:

• Sexual offences resulting in a conviction should not be eligible for protection from disclosure under the framework.

• The proposed framework should not interfere with the following:

a) existing oversight and complaints mechanisms, such as complaints to the Office of the Victorian Information Commissioner.

b) criminal record checks under current policy and legislation, particularly in relation to irrelevant criminal records.

TPAV secretary Wayne Gatt said the inquiry’s adoption of several recommendations made by The Association in its submission was proof of the importance of our advocacy on this issue.

"We felt that our members deserved to have a voice on this important issue and that’s what we provided. If this scheme is adopted in the future, the submissions we have made will have helped shape it in a way that benefits our members and the way they do their job," he said.

"We thank the parliamentary committee for giving us the opportunity to present our thoughts and for listening and taking on board what we had to say."