MEDIA RELEASE 5 November 2020

Supporting rehabilitation - an important step to address the stigma and discrimination of having a criminal record

VALS and the RMIT University Centre for Innovative Justice congratulate the Government on the introduction of the Spent Convictions Bill 2020, and we particularly acknowledge the contribution of the Woor-Dungin Criminal Record Discrimination Project. This legislation will bring Victoria in line with other Australian jurisdictions and will remove some of the obstacles to people’s successful rehabilitation.

Quote attributable to Nerita Waight, CEO of Victorian Aboriginal Legal Service:

Aboriginal and Torres Strait Islander peoples are overrepresented in the criminal legal system and are disproportionately impacted by the stigma and discrimination associated with having a criminal record. It is crucial for people who have been involved in the criminal legal system to be afforded the opportunity to gain access to employment and housing. Consigning people to a life of poverty and exclusion due to a criminal record perpetuates cycles of offending, entrenches disadvantage and will only contribute to the shameful overincarceration of Aboriginal people.

This legislation is a positive step in reforming the criminal legal system, and VALS encourages the Government to consider further legislative and policy reforms in relation to criminal records.

Quote attributable to Naomi Murphy, Client Service Officer at Victorian Aboriginal Legal Service:

I am someone who has been discriminated against due to life circumstances beyond my control, such as family violence and intergenerational trauma – out of that trauma I ended up with a criminal record and conviction. This has had a lifelong effect on me, not just as an Aboriginal woman, but as a mother, a worker in the community and an Aboriginal kinship carer. I have been discriminated against numerous times. When I had the opportunity to share my life’s journey, when I got an email inviting me to be a part of the Criminal Record Discrimination Project, I took it, as I didn’t want other Aboriginal mob to face the same barriers that I did.

Now that we will finally have the spent convictions scheme here in Victoria, to align us with rest of country, this will not only benefit wider community, but also the Aboriginal community, as unfortunately the rates of involvement in the justice system are higher.

This legislation will give us the opportunity to self-determine our future and give us a second chance.  

Quote attributable to Michael Bell, Aboriginal Community Engagement Worker, Rethinking Criminal Record Checks Project, RMIT University Centre for Innovative Justice; and former convener for the Woor-Dungin Criminal Records Discrimination Project

As the convener for the Woor-Dungin Criminal Records Discrimination Project as a representative of the Winda-Mara Aboriginal Corporation, I appreciate the State’s introduction of the Spent Conviction Bill 2020. Given the continuation of the over representation of AUD casinos Aboriginal people in the Criminal justice system, the introduction of this bill will provide hope to Aboriginal people who have completed their sentences and want to contribute back to community and move on with their lives. I believe this bill can have an impact on a reduction on the recidivism rate within the criminal justice system. Great for the State to have the courage to introduce this bill and great work to the people and organisations who contributed to the Woor – Dungin Criminal Records Discrimination Project.

Quote attributable to Stan Winford, Associate Director, RMIT University Centre for Innovative Justice and law reform working group convener for the Woor-Dungin Criminal Records Discrimination Project:

The Criminal Record Discrimination Project was established to address calls from the community for a response to the issues faced by Aboriginal people dealing with the lack of regulation of criminal records in Victoria, including barriers to employment, and poor justice, health, social and economic outcomes. In December 2017, following extensive consultation with community, the Aboriginal Justice Forum at Swan Hill unanimously endorsed the Woor-Dungin Criminal Record Discrimination Project’s call for reform, recommending that the government introduce a spent convictions scheme and anti-discrimination protection. The Parliamentary Committee inquiry chaired by Fiona Patten MP drew on this work, and, crucially held hearings on country to learn about how it was affecting people. The inquiry’s activities built support for this reform across the Parliament. 

We congratulate the Attorney-General, Jill Hennessy MP, and the Andrews Labor Government for finally taking action as this reform will begin to lift the burden of stigma from the lives of many who have been unfairly defined by their past. As Aboriginal and non-Aboriginal supporters of this project have argued, these long awaited reforms will go some way towards providing an opportunity for healing, and will help strengthen communities.

VALS and the RMIT University Centre for Innovative Justice note that there is still further legislative and policy reform required, and urge the Government to continue along this positive path. Reforms it should consider include amending the Equal Opportunity Act 2010 to include irrelevant criminal record as an attribute, and revisiting the 5 year waiting period for children and 10 year waiting period for adults, as these periods under the scheme are too long and do not reflect contemporary approaches to criminal justice and rehabilitation. The 12 month review established by the Bill should be used to address these issues.

RMIT University and the Centre for Innovative Justice have recently partnered with VACCHO, Winda-Mara and Woor-Dungin on the Rethinking Criminal Records Project, which will aim to develop resources to support Aboriginal job-seekers with criminal history overcome barriers to employment, and provide practical guidance to employers wishing to hire them.

Contact:

VALS: 
Andreea Lachsz – alachsz@vals.org.au    

RMIT University Centre for Innovative Justice: 
Stan Winford – stan.winford@rmit.edu.au, 0438 080 608

To determine eligibility VALS will:

  • enquire as to the Aboriginality of the client;
  • enquire as to perceived or actual conflict of interest;
  • enquire as to compliance with the Means Test;
  • consider the merit of the client’s matter.

Aboriginality
The first time someone uses VALS they must provide proof of their Aboriginality using the Confirmation of Aboriginality Form. This form must be signed and sealed by the Officer Bearers of a recognised Aboriginal and Torres Strait Islander organisation.

Conflict
VALS must not decline to provide assistance to an eligible person, group or body on the grounds that the other party to the matter is an Aboriginal and/or Torres Strait Islander person. In circumstances where the relationship between the parties to a case would result in a conflict of interest, that conflict must be managed in accordance with the Victorian Legal Practice requirements and Policy Direction 9 – “Managing Conflicts of Interest” – of the Attorney-General’s Department Policy Directions for the Delivery of Legal Aid Services to Indigenous Australians (2008).

VALS will not act if a conflict of interest exists. A conflict of interest may be an ‘actual’ conflict of interest or a ‘perceived’ conflict of interest. A conflict of interest can involve:

  • Clients who have different interests, such as VALS may have advised or acted for person “A” (old client) who has an interest that conflicts with person “B” (intended new client).
  • Clients and VALS, such as a VALS staff member or Board Member has an interest that conflicts with an intended new client. Conflicts involving client-provider relationships are:
    •  An owner, director, manager, employee, contractor or agent of VALS and/or;
    • An employee of the Department; and/or
    • A close relative (spouse, de facto, parent, sibling or child) of any of the above.

VALS provides assistance on a first in best dressed basis (i.e. provide direct assistance to the party who approaches VALS first). VALS will refer the other party to another legal service provider or “brief out” the client to a private lawyer (subject to the client meeting the requirements for brief outs). Where appropriate, VALS may act for one client and provide assistance by brief out to the other.

Means Test
Where a person seeks casework assistance, VALS must ensure that applicants satisfy the Means Testing provisions of the Policy Directions.

VALS must ensure that all applicants for legal casework assistance satisfy one or more of the following requirements:

  • Under 18 years of age;
  • Main source of income comes from Community Development Employment Projects; (CDEP) participant wages or Centrelink (or equivalent) benefits; or
  • Gross household income is under $52,000 per annum.

Note: Household income includes the income of your partner, spouse, relative including an adult child who you live with.

The Means Test will be administered in two parts:

Part A: Requires the completion of a small number of questions relating to the applicant’s personal circumstances and income level.

Part B: Is required where applicants do not satisfy the criteria in Part A. It requires more detail about the applicant’s income, assets, employment status and number of dependents.

Merit Test
Discretion will be used to determine if a particular case has merit.