gallery For the record – Victoria Police’s unjust Information Release Policy

Written by Josh Taaffe. Solicitor, Doogue & O’Brien Criminal Defence Lawyers

In Victoria, the release of a person’s criminal history is governed by the Victoria Police Information Release Policy[i]. This information is recorded based on findings of guilt as well as convictions. Consequently, findings of guilt without conviction, including findings of guilt where a good behaviour bond is imposed, are systematically released during criminal history checks. Information is released for up to ten years for adults and five years for children. It is after these periods that the conviction becomes “spent”. This does not happen in a formal way but rather as a result of Police policy. After ten years, in most cases, the information is no longer released.

There is a high degree of public confusion surrounding this issue. Often, those found guilty without a conviction are under the misapprehension that such a finding will not show up on a criminal history check. A 2006 article in the Age newspaper revealed that police process over 300,000 criminal history checks per year[ii]. The volume of checks makes the police information release policy a matter of some concern.

We are all aware that not everyone who has a criminal record is a serious offender. However the stigma of a criminal record has far reaching implications in a person’s life. Particularly as many people have insignificant charges incurred in a variety of circumstances. On occasion, charges relate to behaviour that occurred during a momentary lapse of judgement, a period of difficulty, or in a phase of a person’s life that they have moved on from by the time the charges are heard by the court. In accordance with s8 of the Sentencing Act 1991 (Vic) Judges and Magistrates take these circumstances into account and decide whether or not to record a conviction. Judges pay specific regard to the impact of recording a conviction upon a person’s employment prospects and also the role this plays in their rehabilitation.

The Victoria Police, in its Information Release Policy, systematically ignores the consideration of these factors and the resultant decisions made by the judiciary. The decisions of Judges and Magistrates are undermined by the policy of releasing information about findings of guilt without conviction. The intentions of both the judiciary and parliament (as expressed in the Sentencing Act) are frustrated by police policy.

The resultant release of information and confusion regarding the meaning of criminal records has a dramatic impact on people’s lives, their families and their livelihoods. People can lose their jobs, be refused employment, and discriminated against on the basis of trivial matters.

Employment and accommodation are two crucial factors in reducing recidivism[iii]. UK studies have reported that employment can reduce recidivism by between a third and a half – but that 60% of ex-offenders were being refused jobs because of their criminal record.[iv] There is also a social cost to this policy that facilitates discrimination and prevents ex-offenders from getting on with their lives and resuming a place in society.

The Victorian Government has been involved in efforts by the Standing Committee of Attorneys General (SCAG) to develop a uniform spent conviction scheme in Australia. One of the recommendations of the model proposed by SCAG is that:

“unless a specific exemption applies, a finding of guilt without a criminal conviction recorded should not be included within the definition of ‘conviction’ for the purposes of a spent conviction scheme, and therefore should not be made available on a person’s official criminal record.”[v]

It is our submission that most of the specific exemptions imagined by the SCAG proposal are now covered in Victoria by the Private Security Act 2004 and the Working With Children Act 2005. In particular the Working With Children Act ensures that work with the most vulnerable members of our society is highly and appropriately regulated.

The Victorian Government has been deliberating this issue and the need for Spent Conviction legislation for many years but to date no legislation has been passed. The need for immediate action on this legislation is imperative so that the police can be prevented from frustrating the intentions of the judiciary and parliament.

Such a move would not only prevent discrimination but clarify an area of considerable public confusion. In the process it would remove obstacles which prevent some ex-offenders from pursuing employment and participating in society. Courts often recognise that people of good character have made a simple and fleeting error in judgement. Courts try and give these people a second chance so through non conviction results. Legislation is needed so that people are allowed the chance that the Courts are trying to give them – so that these passing mistakes don’t cast a shadow over the rest of people’s lives – or at least the next ten years.

____________________

[ii] Burrow, V ‘Police sorry for LEAP bungle’ The Age 16 May 2006.

[iii] See, eg Social Exclusion Unit, Office of the Prime Minister (UK), Reducing Re-offending by Ex-prisoners (2002)

[iv] Home Office (UK), Breaking the Circle: A report of the Review of the Rehabilitation of Offenders Act (2002) 75.

[v] pp18-21, Standing Committee of Attorneys-General, Uniform Spent Convictions – A Proposed Model

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11 comments

  1. I particiapted in a diversion program some years ago. Putting the bitter merit of the matter aside – I agreed to participate on the basis that I did not have a finding of guilt. I was happy to acknowledge what I did and that it was otherwise inappropriate, but I did not agree to plead guilty as I did not regard my conduct as a breach of the law. A rail transport offence of language that they decided to charge on summons. So the diversion proceeded and the matter was discharged. A quite petty matter really….

    Just the other day I got an infringement notice on the spot as a pedestrian for crossing a railway crossing while the lights and bells started, although the gate had not yet closed. I don’t mind paying the fine of $345.00, but the policeman did a ‘check’ on me and indicated that the previous transport matter was a finding of guilt that he took into consideration. I haven’t had any other compliance issues for over 7 years. He still felt the need to issue the ticket though. The Criminal Procedure Act 2009 states that:

    s59(4) If an accused completes a diversion program to the satisfaction of the
    Magistrates’ Court-

    (a) no plea to the charge is to be taken; and
    (b) the Magistrates’ Court must discharge the accused without any finding
    of guilt; and
    (c) the fact of participation in the diversion program is not to be
    treated as a finding of guilt except for the purposes of-
    (i) Division 1 of Part 3 and Part 10 of the Confiscation Act 1997; and
    (ii) section 9 of the Control of Weapons Act 1990; and
    (iii) section 151 of the Firearms Act 1996; and
    (iv) Part 4 of the Sentencing Act 1991; and
    (d) the fact of participation in the diversion program and the discharge
    of the accused is a defence to a later charge for the same offence or
    a similar offence arising out of the same circumstances.

    So, it doesn’t matter what the intention of the Judiciary or Parliament is, what the law states or what the circumstances are, the police will simply do as they like. They will use and release information as they see fit ‘in their discretion’.

    After he confirmed that an infringement notice would issue, I disclosed that I was now a lawyer and admitted to practice. He seemed surprised. Afterwards, I was still worried he would issue a summons…..

    Put aside the issue of convication, they don;t even care whether it was a finding of guilt or not. They simoly regard it as an “EVENT”.
    What is really needed is regualting over what police keep in their owncriminal records and on their LEAP database.

    • I agree with you entirely. There should be spent convictions annd they should be legislated. The Police in Victoria disclose non-convictions to employers which is imho outrageous

      • is there any way to get around this.. why are police a law unto themselves.. feels like vicpol is playing judge dredd

    • It’s especially relevant to look at Victoria Police Policies now given the already high rates of employment and job competition. Employers are using this information to discriminate and it’s keeping a whole lot if people unemployed and it’s not good enough when these “incidents were over a decade ago” it’s just another way we disempower the less fortunate.

  2. […] Currently, Victoria does not have a regime for spent convictions. If a person attends their Court to answer a criminal offence and pleads guilty or is found guilty, that person will have a record of their court appearance which can be disclosed to third parties such as prospective employers.  You can read more about Victoria’s policy on spent convictions in our blog post from February 7th 2012, For the record – Victoria Police’s unjust Information Release Policy. […]

  3. I notice this policy is a Victoria Police policy and not for any other service. Victoria Police have been behind the times for many years and I can not see things changing in the near furture.

  4. Well, obviously legislation is removing the “conviction” issue from the picture – and is solely basing on the findings of guilt for leaking out criminal information. The client was freed from conviction but not from the consequences of being found guilty. If the court gives him a chance, maybe the police should give him a chance as well. Or should the two have separate standards for implementing justice?

    As much as we all don’t want to get a criminal record, sometimes you could be trapped. Don’t we have a lot of good prosecutors?

  5. The real answer is do not get a criminal history. Why should a person not be judged on his or her past behaviour and sentenced on the basis of his or her past behaviour.. Solicitors have a job to do do, the best for their client when their client is convicted their job is finished they do not have to even collect their fee they have it up front because they do not trust their client to pay at a later date.Being a solicitor is just another profession with a language all of its own so the layman cannot trespass.

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