WHAT happens if an official does get it wrong? You have two injustices: the wrong and then the black mark against your name to remind you that you were wronged. A criminal conviction can have dire consequences on a person’s life. The law allows the court a discretion in relation to a disposition with or without a conviction.
But what if you don’t get the benefit of that discretion? One can soon become tarnished for life by circumstance without ever any chance of full atonement. As part of Liberty’s ongoing commitment to law reform, we recently wrote a submission in relation to the draft Model Spent Convictions Bill 2009.
Liberty Victoria welcomed the opportunity to comment on the institution of a national spent convictions scheme and supports the Bill. It is important to have a system that recognises a person’s ability to rehabilitate and after a period of good behaviour no longer carry with them a ‘black mark’ on their record given the way that irrelevant spent offences can encroach upon an individual’s civil liberties.
We noted what Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 269: ‘a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice’.
The submission was to the Victorian Department of Justice and is part of a national initiative to have a national spent convictions scheme. Victoria lags behind other states who have spent convictions or irrelevant criminal records schemes.
The implications of a recorded criminal record are significant and can affect a person’s entire life. Likewise, it is important to rehabilitate offenders in a way that is positive and encourages their integration and inclusion in community life. This is especially important in our time, a time of terrorism and where governments are increasingly legislating against perceived national securities threats (we have all seen the case against Mohamed Haneef) which erode the very core of our human rights.
It is this underlying reason why liberty supports the proposal for a bill that would remove discriminatory barriers to offenders’ full participation and engagement in employment, with particular consideration given to young offenders.
Whilst the Bill goes to establish a spent convictions system, whereby after a period of good behaviour a conviction becomes spent and does not appear on a person’s criminal record, there are a few deficiencies that need attention.
The area of sexual offences is one such area. The Bill contemplates two options in relation to these offences. The first is to allow some sexual offences to become spent, whilst the other does not. This will be a policy call for the government. We need to recognise that sexual offences, like many others, range in degree and seriousness. To exclude sexual offences from this bill would deny this truth and more so only go half way in successfully meeting the Bill’s objectives.
The Bill needs to go further in amending and codifying existing policies and practices in relation to the release of criminal records in general and maintain a distinction between conviction and non-conviction dispositions. The current procedure in court is that convictions more than 10 years have less weight in sentencing. They can be alleged against the offender, but courts usually attach less weight, particularly if there have been no matters subsequently.
The Bill sets up a scheme that brings Victoria in line with other states yet needs to do more. Irrelevant criminal record is now an attribute protected by equal opportunity legislation. For this Bill to have its intended impact, it needs to be amended to go further and this needs to happen right away.
Aggy Kapitaniak is a barrister and Secretary of Liberty Victoria.