Damien Carrick: Hello, Damien Carrick here.

Today on Law Report Summer where we revisit some of our favourite programs of the last year, how many of us did bad things but were never caught?

As Anita Barraud reports an American Project exposes the blurry lines between a clean skin and a criminal record.

Emily Baxter: Eight teenage boys decided that they would break in to a local liquor distribution plant. So they hatched out this plot, they had blueprints, they had walkie-talkies and a decoy van. They had waited for several months, ironing out all of the details before pulling off this heist. And late one night they broke into the building, got away with loads of beer, and schnapps for the girls, broke into a local cabin, stashed all of their loot and then sat on it for several months, waiting for the hubbub to die down. Once it did, they threw what he called an epic senior party.

Anita Barraud: Two of these young men would end up as chiefs of police, others college professors, and one a victims' advocate. We'll hear more on the ones that got away later.

First, how long should we pay for past crimes or misdemeanours? In Victoria, a criminal record, no matter how petty, can follow you for decades. It can ban you from some career paths, applying for insurance, even for IVF treatment.

The Law Institute of Victoria has just submitted a proposal to the state's Attorney General. They're calling for a spent conviction legislation to be introduced in line with other states.

Katie Miller is the Law Institute president.

Katie Miller: So what happens…and people who have applied for a job or a licence will probably be familiar with this, you fill out a form that says, yes, I consent to a criminal record check being done on me. The government sends that to Victoria Police. At the moment the Victoria Police have an administrative policy which they use to decide what information they will then give about your criminal history.

Anita Barraud: The Victorian police reported almost 482,000 criminal history checks just in the 2013/2014 year.

Katie Miller: That's right, and when we think about the fact that Victoria only has 5 million people, that means in any given year one in 10 Victorians is having a criminal record check.

Anita Barraud: This includes a person being charged, found guilty but not convicted. So they might have a court order or pay a fine or be given a good behaviour bond. That's still on the records.

Katie Miller: Under the Victoria Police policy that does come out on your criminal history record.

Anita Barraud: You also give an example of a youth stealing a car, having had a few drinks. He is not convicted but his probationary licence is suspended for a while, he does community work, he thinks that's the end of it. He is now studying to be a paramedic, but it's found out that these findings of guilt are still there.

Katie Miller: That's right. It's the sort of thing that people find that once they have committed an offence, they've done the crime, they've done the time, but then what they find is that they have to keep going back to this moment in their life which might have just been a lapse of good judgement, it might have been a particularly traumatic time that they were going through, they might have been battling personal circumstances like drug addiction or alcohol addiction, and they've committed this crime. They've then done the time but they have to keep revisiting it every time they apply for a job, or if they apply for certain government licences, explaining why it happened and why they shouldn't be judged on that event but why they should be judged on the person they are today. And 'today' may be decades after this happened. And we are saying that findings of guilt where there is no conviction recorded should be spent immediately so that they never come up on your criminal history check.

Anita Barraud: And this is in line with other states, isn't it.

Katie Miller: That's right. So the scheme that the Law Institute of Victoria has proposed essentially cherry-picks from all of the best features of the other schemes that are in place in the other states and territories in Australia.

Anita Barraud: What kind of jobs does having a criminal record preclude you from?

Katie Miller: What we have found just from talking to people who have criminal histories is that in some ways you are better off going for one of those professional roles. Sometimes it's easier to persuade a government regulator that your theft offence from 10 years ago is not relevant to you being registered as a nurse, it's actually easier than convincing an employer that a drink driving offence isn't relevant to your work as a labourer. Because of the information that comes out in the criminal history check, it's quite limited. It just says what the headline offence was. So it might say 'theft' or it might say 'aggravated burglary' or 'drinking under the influence'. It doesn't provide any context to that. It doesn't say what actually happened, what led to the offending, it doesn't say anything about the magnitude of the offending. So in terms of what end users can actually do with that information, it's quite difficult. If you're an employer and you're sitting there looking at this criminal history check and an offence of theft is recorded…

Anita Barraud: Except that this job might be as a bank teller.

Katie Miller: It might be, or alternatively it might be as a labourer. And unfortunately what we are hearing is that employers see 'theft' and from that immediately swing to 'you are not fit for the job'. For example, a lot of casual employees don't need to go through a criminal history check. We heard some very compelling stories about people who had deliberately stayed in casual employment because they knew they had a criminal history check and they knew that as soon as they applied for permanent employment there would be the criminal history check done and their fear was that the employer would just look at the headline offence and say, no, you're not suitable.

And one of the examples in our submission is of a woman who was convicted for theft in Victoria and then she moved to New South Wales, and she applied for insurance, and the insurance company will did a criminal history check on her. And without asking any more questions, refused her insurance. And so she finds herself living in New South Wales, unable to get insurance for her home and contents, and, as luck would have it, she has actually been robbed twice. What we are finding increasingly is that criminal record checks are being used almost as a de facto assessment of your overall general character. And the Law Institute of Victoria's position is that a person's character is made up of lots of things. A criminal history may be relevant sometimes but it's not determinative.

Anita Barraud: And it certainly must be relevant in things with applying for a working with children card, for example.

Katie Miller: That's right. And even under a spent conviction scheme it will still be open to Parliament to authorise a more fulsome criminal history check in particular circumstances, and it may be that the government decides that the working with children check scheme is one where you want a more cautious approach and you do want to know about offences that are over 10 years old. The Law Institute of Victoria hasn't commented on that in its submission, that's a matter of policy detail that the government will need to sort out.

Anita Barraud: So, just to clarify, what are you recommending?

Katie Miller: So we are recommending that after 10 years for adults and after three years for juveniles, convictions for any offence that has resulted in a sentence of imprisonment of less than 2 ½ years would become spent. So that means the law would treat you as never having had that at all…

Anita Barraud: A clean slate.

Katie Miller: A clean slate, exactly. The exception would be sexual offences. In all of the schemes around Australia, you always have to declare or disclose your sexual offences. And if you just think yourself about how you are at the age of 20 compared to how you are at the age of 30, compared to how you are at the age of 40, so just in terms of looking at the cycle of reoffending, the Law Institute of Victoria believes that 10 years is enough time to elapse to really get a sense of, well, if there's going to be any reoffending, it will happen within that 10 years.

Anita Barraud: Katie Miller, Victorian Law Institute president. And the Victorian Attorney General has stated that he welcomes the submission and will consider it after consultation.