Uncle Larry Walsh was around three years old when the government took him from his mother Melva and made him part of the Stolen Generations. After living in orphanages for six years he was housed with a foster family in Hadfield, Melbourne. It was here, aged around nine, that the police first stopped the Taungurung boy on the street and asked him if he’d ever been in trouble.
“I said no, and started walking back home,” he says. “Next thing they came back, picked me up, took me to the police station, called me a liar, said I had a criminal record and gave me a beating.”
Historically, when children were taken into state custody, the notes on their record did not say whether they were taken in for protection, or for detention because they had broken the law. Uncle Larry also ran away from his orphanage as a young child, which would have been mentioned on his record.
After that first time he was picked up by the police, Uncle Larry says he was stopped whenever a crime was committed in the area. “They didn’t ask all the white kids, they didn’t ask the Italian kids; they came to me. By the time I got to be around 11, I got sick of being pulled up for things I might not have done, so I started doin’ em,” he says.
Uncle Larry’s interview, collected as part of Woor-Dungin’s Criminal Record Discrimination Project (CRDP), is a strong example of how over-policing and prejudice contribute to Aboriginal people’s over-representation in the criminal justice system. Many other factors such as poverty also play a role.
“Aboriginal people represent approximately 3% of the Australian population, and around 28% of the prison population” says Stan Winford, Associate Director at the Centre for Innovative Justice, RMIT University. This is part of a wider gulf between Aboriginal and non-Aboriginal Australians: Indigenous people are also 20% less likely to participate in the labour force, he adds.
All levels of government across the country have committed to closing the gap between outcomes for Indigenous and non-Indigenous Australians – but the Victorian government is failing to update certain laws that are holding Indigenous people back, says Winford.
Victoria is the only state in Australia that doesn’t have spent convictions legislation, which gives offenders an opportunity to rehabilitate by allowing convictions to become spent after a certain period of time.
People who have lost jobs or been unable to obtain them because of criminal records that are not relevant to their employment don’t have any protection against discrimination from employers either.
The CRDP – an alliance between Aboriginal controlled-community organisations and leading legal and civil-society groups – aims to change this. The project’s Advisory Committee is convened by Michael Bell, CEO of Winda-Mara Aboriginal Corporation and a Koori Court Elder, and comprises of over 50 individuals, including Winford.
The group believes that the current laws are hindering government policies on Indigenous advancement. For example, research suggests that having a criminal record makes it more difficult to find work¹, and employment is an area where the government is not meeting its commitments to Indigenous people. Efforts to halve the gap in employment between Aboriginal and non-Aboriginal Australians by 2018 are not on track – indeed, according to the latest available figures, government has made no progress on this target since 2008.²
For Wenzel Carter, former vice chair of Willum Warrain Aboriginal Association, his involvement in the CRDP Advisory Committee is personal. “I have many friends and relatives who have been in jail. It’s the first fork in the road [for a lot of young Aboriginal people] and they took the wrong one,” he says. “Everybody deserves a second chance.”
Offering people a second chance through a spent convictions scheme would not only bring Victoria up to speed with every other state in Australia, but would also resolve a current contradiction in Victorian law, says Winford. He argues that the absence of a spent convictions scheme undermines existing state legislation that’s designed to help rehabilitate offenders and cut crime.
“The Sentencing Act 1991 (Vic) provides that a court may take into account the impact a conviction would have on the offender’s economic or social wellbeing, or on his or her employment prospects, when deciding whether or not to record a conviction,” he says. So, the court can decide not to record a conviction if it thinks this will help the person to reintegrate into society after finishing their punishment. But because Victoria has no spent convictions scheme, non-convictions still show up on police checks long after the punishment is completed, and do precious little to help the person move on and get a job. This has a negative impact not only on the ex-offender, but also the wider community, since research shows that gaining employment is a key factor in reducing re-offending.³
The difficulty of moving on from past offences also affects Indigenous people with criminal records in many other aspects of their lives. After getting convictions for theft and driving without a licence, Uncle Larry changed track and has become a respected community elder. Nonetheless he has been rejected from representing his community on government advisory panels multiple times in recent years. Uncle Larry argues that this interferes with Aboriginal self-determination.
“If your community picks you to represent, that should be not the government’s right to veto,” he says. “I’m worried that we’ll lose talented young people that our communities have trust in, because they’re getting knocked back on the same grounds as I’m getting knocked back.”
Funding for the CRDP has come from The Myer Foundation, Australian Communities Foundation and Victoria Law Foundation. Although the collecting of case studies continues, the project has now entered its advocacy phase. In April 2017 a consultation was held with key Victorian Aboriginal legal and community stakeholders to gauge what spent convictions legislation and protection from discrimination on the basis of irrelevant criminal record should look like in Victoria. A position paper was developed based on the recommendations of the consultation participants. The position paper will be circulated for endorsement among members of Victoria’s Aboriginal communities and then submitted, along with the case-studies, to an Aboriginal Justice Forum in October 2017.
“It’s vital that Victoria introduces legislation to protect people from discrimination on the basis of an unrelated criminal history, as well as introducing spent conviction legislation – which exists in all other states and territories,” says RMIT University’s Bronwyn Naylor, a member of the CRDP Advisory Committee. “Current laws entrench the disadvantage and discrimination faced by Aboriginal people and limit their valuable contribution to their communities, and to Australian society more generally.”