On 30 March 2021, the Victorian Spent Conviction Scheme was granted Royal Assent. Aspects of the legislation are now in effect, with the remainder coming into effect in December 2021 and July 2022.
The scheme allows for convictions to be automatically spent or spent upon application, giving people with criminal histories the opportunity to avoid the stigma of those histories for the remainder of their lives. It also allows for people to move on with their lives and careers, without having to explain offending that may have happened many years (even decades) ago. It makes it an offence to disclose information about a spent conviction, giving additional protection to those who would like to put the past behind them.
Pursuant to section 7 of the Act, where a conviction is not recorded by the court or it is qualified by age or mental impairment (subject to the provisions of the Act), the conviction becomes automatically spent. Also, if there is a conditional penalty attached (for example an undertaking to be of good behaviour without conviction), the convictions become spent once the person completes all of the conditions that are attached to the penalty.
Where a person has a conviction for a non-serious offence, the conviction period will expire after 5 years (for a child) and after 10 years (for an adult). For serious offences, there is now a system through which an individual can apply to the Magistrates’ Court for a spent conviction order once the conviction period has expired. Submissions can then be made on behalf of the applicant, the Attorney-General and the Chief Commissioner of Police. Hearings may also be held in Court in relation to whether the Application should be granted. At the conclusion of the proceedings, a Magistrate (after considering a number of factors relevant to the Application) may make an order that the conviction is spent.
The effect of a conviction becoming spent is that the spent conviction does not form part of a person’s criminal record and they are not required to disclose the spent conviction. The spent conviction is also not revived by any subsequent conviction of the person. There are exceptions for information sharing amongst law enforcement or for the purposes of exercising a function or power under an Act. For example, a spent conviction may form part of the consideration for a Working with Children Check and for other registration and licensing purposes.
The introduction of this scheme has the potential to significantly assist individuals with old convictions, particularly vulnerable groups, who may be particularly disadvantaged by a historical criminal history. It also allows for people to apply for a spent conviction in circumstances where they committed serious offences, whilst suffering personal hardship. In short, this legislation allows people to move forward. If you believe that you may be eligible to apply to the Magistrates’ Court to have a conviction spent, please contact our office today to discuss your matter.
