Victory has many fathers, defeat has none

Written by Bill Doogue, Partner, Doogue + George Defence Lawyers

It is great to see the progress and that a committee has been formed to consider legislation on spent convictions.

It is long overdue and something we applaud.

We have been advocating about this for many years now:

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

Police Record Checks

And have been publishing the issue for many years in social media.

Last year our firm decided that this was something that we wanted to have a hand in pushing along. We had been involved in getting the LIV to try to get somewhere with it twice through our involvement in the criminal law section.

We went, last year, to parliament to talk with Fiona Patten about this issue as she seems uniquely talented in actually getting meaningful legislation through to law.  She indicated that it was definitely on her horizon and that if re-elected she would be making an effort to get the legislation through.

The Law Institute of Victoria had provided us with their files in relation to the work that had been done over the years so we could use the resources for our lobbying to try to push this along.

We decided that prior to the State election would be the best time to get the attention of all the members of parliament. The logic was that with their heightened desire to have people vote for them they would at least consider the issue.

So we sent a submission on the issue to every parliamentarian with a few notable exceptions. The main group who were generally an exception might surprise some, as it was the Greens.

However, from our perspective the Greens were the problem with getting legislation through. They had entered the previous parliament and trumpeted that they were going to be writing proposed legislation on the issue and so it became effectively something no one else would/should work on.

But they did nothing and did not present draft legislation.

Back to our submissions to the parliamentarians; we sent these out and got a number of positive responses from both sides of the major parties. That is because it is a no-brainer. All the other States have a legislated process whereas we have a bizarre process where the Police are the ones who decide whether things are released.

Hopefully the committee can decide on an appropriate form of legislation. It is appalling that good decent people who have made a mistake or exercised bad judgment a long time ago continue to be impacted by those decisions. Change is the right thing to do.

The main reasons for this blog are threefold. We want, as said above, to applaud Fiona Patten and the Reason Party for a real commitment to social change and their ability to actually achieve change.

Secondly, we want people to realise that we as citizens can help to nudge these processes along. If you believe something is important contact your politicians and tell them. 

The third is that we have one suggestion for the committee looking at the legislation.

Uphold and give effect to the current law!

Section 8 of the Sentencing Act 1991 (Vic) gives Judges and Magistrates the discretion to enter a non-conviction if certain circumstances are met ;

“Conviction or non-conviction

    (1)     In exercising its discretion whether or not to record a conviction,
a court must have regard to all the circumstances of the case
including—

        (a)     the nature of the offence; and

        (b)     the character and past history of the offender; and

        (c)     the impact of the recording of a conviction on the offender‘s
economic or social well‑being or on his or her employment
prospects.”

Courts 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.

If a non-conviction is entered then the conviction should be immediately spent and the Police should not be able to disclose this non-conviction to anyone unless there is a specifically legislated exception.  Current Police practice undermines the Court’s discretion.

This change would give effect to the whole point of the Sentencing Act discretion.

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