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Righting past wrongs

Historical care and protection orders are no longer treated as criminal convictions in Victoria

Guest Post by:
Miriam Conrick & Lisa Scholes,
Care Leaver and Personal Records, Freedom of Information, DHHS
 

In Victoria, until the early 1990’s, the Children’s Court dealt with both child protection and criminal matters, without differentiating between the two. That led to children who entered the “care” system being charged and convicted of being a “neglected child”, being “exposed to moral danger”, or as “likely to lapse,” among others. A similar process was followed in NSW.

These charges have continued to impact on those who were removed from their home and placed in “care”.

Summons for being a neglected child and ‘likely to lapse into a career of crime’ – North Melbourne Children’s Court, 8th July 1939.

Summons for being a neglected child and ‘likely to lapse into a career of crime’
– North Melbourne Children’s Court, 8th July 1939.

Changes to the Children, Youth and Families Act 2005 (Vic) now ensure that historical care and protection orders are not treated as criminal convictions or findings of guilt in any circumstances.

From January 1 2019, these changes require (among other things) that responsible agencies attach an information statement to each release of documents that addresses and corrects the criminal nature of these orders.

The information statement is the result of consultation with various care leaver support organisations, including Open Place Victoria, CLAN, the Department of Justice and Community Safety, and Victoria Police.

Where a person’s records may contain information about a charge, these records are not a conviction or finding of guilt. Those who were charged with being neglected or similar are not required to disclose information about a historical care and protection order to another person for any purpose.

Victoria is, so far, the only jurisdiction to have addressed this issue. You can read the “Historical care and protection orders are no longer treated as criminal convictions” (pdf) here: Historical-care-and-protection-order-information-statement.pdf

1 Comment

  1. Thanks Miriam and Lisa for that clear summary of the changes. There will be lots of Care Leavers who will feel that it’s been a very long time coming – those who went before the Children’s Court not for anything they did but charged with being “without sufficient means”, “in moral danger”, likely to lapse into a life of vice and crime”, and so on. These, and other charges were all variants of the concept of “neglect” . It is those “criminal” records which are being wiped out. Miriam and Lisa can truthfully write, “Victoria is, so far, the only jurisdiction to have addressed this issue.”

    However, the note that will go out with records in future points to one continuing issue: “…these changes only apply to historical care and protection order records and not convictions for criminal offences.”

    “Criminal offences” in this context means offences which were criminal at the time – in many cases 30, 40, 50 even 60 years ago – and the offender was a child or young person taken before the Children’s Court. So far, we have not been able to persuade the Victorian government that these offences too should be expunged. These “criminal” records remain – even for those Care Leavers who have since lived a faultless life, and haven’t put a foot wrong since they were a teenager.

    So while it’s true to say that Victoria is, so far, the only jurisdiction to have addressed the issue of records of neglect, it’s equally true to say that Victoria is the only State NOT to wipe the slate clean by expunging criminal records after a period of time. You might have made a stupid mistake while you were growing up, but if you did that in Victoria, you’re branded forever.

    In Victoria, the Police have the power to decide what they will do with your “criminal” record.

    You can see a table showing the spent convictions schemes operating in all other places at” https://www.humanrights.gov.au/publications/human-rights-comparative-table-legislation-spent-convictions

    So hurrah and well done Victoria for a job half-done! Meanwhile, my 70 year old friend Freddy who stole a bike when he was 14 still has the record of that prank hanging over his head. One day, the Victorian government, which prides itself on its social justice policies, will tell Freddy he can rest easy because his 64 year old offence has been wiped off his record. Time for Part 2 of the reform?

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