Care leavers’ “criminal records” to be corrected

On 25 July 2018, the Government introduced a bill to Parliament acknowledging that in the past, children who were made Wards of the State were charged with being in need of protection and that these charges appeared on a child’s criminal record. This meant that a child could have a criminal record for charges such as ‘being in moral danger,’ or ‘being exposed,’ – effectively being criminalised for being vulnerable. This is because the Victorian child welfare system and the criminal justice system for dealing with young offenders were not clearly differentiated, so protection orders were recorded on criminal histories. It was only in 1992 that the two systems were completely separated.

The Bill states that an ‘historical care and protection order is not to be treated as a conviction or finding of guilt for any purpose;’ that a question about a person’s criminal history does not refer to a historical care and protection order; and that responsible agencies, such as Victoria Police, must ensure that when releasing a person’s official record, that it addresses and corrects the apparent criminal nature of a relevant historical care and protection order, and states that a relevant historical care and protection order is not a conviction or a finding of guilt.

At Angela Sdrinis Legal, our clients have told us that they have been stopped by police officers and asked if they’d been in trouble or asked about their criminal records, on the basis of the care and protection orders. See this video from Nina Springle MLC which has testimony from care leavers about the impact of their ‘criminal’ records.

You can read the Victims and Other Legislation Bill here. The Bill has been passed by the lower house of Victorian Parliament and we hope it will be passed into law by the upper house when it next sits.

In Parliament on the 25th of July, the Government apologised to care leavers for this practice. Attorney General Martin Pakula said:

“I would like to use this opportunity to apologise on behalf of the Victorian Government for the significant personal and intergenerational harm caused by historical welfare recording practices. I would like to expressly acknowledge that these recording practices have had a continued impact on those affected, long after historical policies were remedied. I would also like to expressly acknowledge that Aboriginal children were disproportionately impacted by historical State welfare policies. As a result, Aboriginal children were also disproportionately affected by recording practices of the State.

“It is recognised that the considerable and lasting harm caused by historical welfare recording practices cannot be fully addressed by legislative amendment. However, this Bill will confirm that relevant historical care and protection orders are not to be treated as convictions or findings of guilt. This amendment will put beyond doubt that people whose child welfare history is recorded in this way can accurately state that these records are not a finding of guilt.”

Angela Sdrinis Legal acknowledges the extraordinary work of many care leavers, RMIT University Professor Bronwyn Naylor, Woor-Dungin’s Criminal Record Discrimination Project, and Nina Springle MLC for the Greens, in achieving this important acknowledgement. We congratulate the Andrews’ Labour Government for presenting this Bill to Parliament and look forward to its passage through the Assembly.

Law Institute Victoria Accredited Personal Injury Specialists

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