Loading In these instances, it is entirely appropriate that an offender’s criminal history will bear for all time the details of their culpability. But there are other times, for low level or minor crimes, when incentives to encourage good behaviour by offenders have the redemptive power to reduce rates of re-offending and secure the best opportunity to pursue a more fulfilling life, livelihood and career. A spent convictions scheme in Victoria would help achieve this. Hugo (not his real name) is someone I have come to know in the past couple of years over several discussions about the benefits of a spent convictions regime. Many years ago, Hugo was found guilty of a small number of minor offences and fined without conviction. His offending was neither dishonest nor violent. Following his case, he embarked on a new career path and has developed an interest in the possibility of public life.

Loading His criminal record, however, precludes many career paths in that broad field. And while he is quite capable of earning a living as things stand, he lives with the anguish of knowing that due to an error of judgment he made many years ago as a much younger man, for which he has atoned, not just through the criminal sanction he faced, but through a record of unblemished behaviour since, he cannot pursue the pathway to public service he would like. Hugo is not alone. There are others whose offending has been at the lower end of seriousness, but who struggle many years later to find employment even with a clean record since their earlier offending. Finding a job and building a career ought to be the very thing we should want them to achieve. Our justice system should be oriented towards that goal. A great deal of work has occurred since the Australian Law Reform Commission first produced a report on a commonwealth spent convictions scheme in 1987. And over the years since, meetings of attorneys-general have considered a nationwide scheme which has not eventuated, as well as a model bill that has been floating around since 2009. Instead, jurisdictions have gone their own way leaving Victoria alone without such a scheme.

The third and hardest element of such a reform is what the consequences of spent convictions ought to be. WIG Credit:Nicolas Walker The real debate over spent conviction regimes converges on three key issues. Obviously serious crimes such as violent and sexual offending must be excluded. With dishonesty offences, the issue can tend to be more complex given that an offender who defrauded $1000 was arguably as dishonest as someone who defrauded $1 million. Ultimately, however, the scheme must recognise that it is a balance between the policy of giving offenders an incentive to reform their behaviour against another person’s right to know, such as a prospective employer. Secondly, for how long must offenders not re-offend before they qualify to have their earlier convictions spent?

Other states tend to go for a mixture of five to 10 years for adults and five years for juveniles, although there are many variations across jurisdictions. The chief objective here has to be that a person, by not re-offending in any way over an extended period, has demonstrated that they’re not likely to re-offend. The third and hardest element of such a reform is what the consequences of spent convictions ought to be. This is because a spent convictions scheme necessarily encumbers the rights of innocent third parties to seek or use information about spent convictions. For such a reform to be effective there need to be some restrictions on the right of others, not just government agencies, to request or use information about past criminal behaviour from someone who has spent convictions. Take a prospective employer wanting to ask a job applicant with a prior criminal history the standard question about any prior convictions or findings of guilt.

Or consider a victim wanting disclose details of their experience and of the offender in circumstances where that offender has qualified for a spent conviction. None of this means that a spent conviction regime ought not to be introduced, rather that the details of any scheme need to carefully recognise and minimise the impacts on third parties. The Victorian Parliament is currently considering a proposal for a spent convictions scheme but it needs much more work, especially in addressing competing rights. As complex as some of these issues are, we should embrace a scheme that rewards eligible offenders with a chance to restore their name when they have learned the lessons of their mistakes and not re-offended over a sustained period. It’s the very outcome we should want as an affirmation of good behaviour and as a lesson to others.

John Pesutto is a lawyer and was Victoria’s shadow attorney-general from 2014 to 2018.