Expunging the criminal records of kids in care does not absolve the state's injustices against them

In the Victorian parliament last week, legislation was introduced to address a “serious historical injustice” that saw thousands of vulnerable children in state care treated as criminals.

The Victorian government will expunge the records of people who were separated from their families and placed in state care. Up until 1989, when the law was changed, these children were regarded as criminals simply for being born into a family that, for whatever reason, wasn’t able to take care of them.

While Victoria is the only jurisdiction to have tackled this issue, it is not an exclusively Victorian problem. The same practices occurred in NSW, as my research partner and I found out when we discovered boxes in the NSW State Archives that had lain undisturbed for decades. They contained thousands of de-identified summary sheets about children who had been charged with criminal offences.

It quickly became clear, however, that in many cases, the children had not broken the law at all.

Many of the records we examined involved children, some just a few months old, who had been “charged” with being “neglected” or “abandoned”, or with vagrancy. The files of older children, particularly girls, were littered with charges of being “exposed to moral danger” or being “uncontrollable”.

Read more: The faulty child welfare system is the real issue behind our youth justice crisis

While these “complaints” against those in state care were laid by the child welfare department and not the police, the practical consequences were the same. As has been previously shown, magistrates often found children guilty of these offences and sentenced them to detention - sometimes until they reached adulthood – in care homes and secure facilities.

As is still the case in the Northern Territory today, the child welfare system used to run the state’s young offender institutions. There was little attempt to separate children in need of care and protection from those who had committed offences. They all went in together.

The Victorian legislation clarifies that people will not have to disclose care and protection application “records”, and requires agencies to correct misleading and inaccurate information.

It also contains a commitment to make a formal apology that acknowledges how these practices affected people who had been in care. The government has also explicitly said the state’s actions will not create an entitlement to compensation for those affected.

The government response followed a concerted community campaign that highlighted the negative consequences for the Stolen Generations after the state designated them criminals.

As the Royal Commission into Institutional Responses to Child Sexual Abuse has reported, children placed in care were often exposed to bullying and abuse, not just by other children in the facilities, but also by the adults working in the system who were trusted to protect them.

Victoria’s lack of a spent convictions scheme has meant that people who were once in care but never committed a criminal offence have had to disclose their care and protection “criminal records”.

They also suffered the discrimination and shame that attaches to having a criminal record. The research is clear that having a criminal record, especially one begun in early childhood, has far-reaching consequences that affect employment, housing and travel options, and can even result in the loss of the custody of one’s children.

For some people who grew up in care, the Victorian government apology and legislative change might mean something. But for those who grew up in care and went on to commit criminal offences, the government’s commitment falls far short of what is needed.

People with experience in care are over-represented in our prisons. In NSW, for example, up to 30% of prisoners have been in care.

As former Prime Minister Kevin Rudd’s apology acknowledged almost a decade ago, the out-of-home-care system often failed to provide children with the safety, support and opportunities they deserved.

We should not be surprised, given these circumstances, that children already regarded by the state as criminals went on to commit criminal offences. Yet the care-to-prison pathway is not acknowledged in the Victorian government’s reforms.

In the UK, people are demanding governments do more. Victims of organised crime gangs and paedophiles, who committed criminal offences after being groomed as children, are calling for royal pardons to be granted that would wipe their records of these offences. Their calls have been backed by the Children’s Commissioner for England, senior police, and local councils responsible for providing out-of-home-care services.

Read more: Nothing to see here? The abuse and neglect of children in care is a century-old story in Australia

Australian children in care have been subject to similar child sexual exploitation, abuse and recruitment into organised criminal gangs. Work we are undertaking indicates that workers employed in the child welfare system still regard vulnerable children as criminals, and treat them accordingly.

This is reflected in the fact that children in care are disproportionately likely to end up in the justice system, and at younger ages, than other children, often for behaviour that wouldn’t lead to police involvement in a regular, family home. They are also less likely to be diverted from custody, and more likely to be denied bail due to a lack of stable and safe accommodation, than other children.

Children in care were wrongly convicted by the actions of the state. Regarded as criminals, and treated like criminals, some later became criminals.

Yet the Victorian proposal fails to acknowledge the ongoing harm that state practices had on thousands of people. It is also silent on the ongoing criminalisation of children in care today.

In offering to cleanse the official records, yet ruling out compensation to those affected, it has rendered its apology as merely lip service for past wrongs.

This piece was co-authored by John Murray, who is the out-of-home-care advisor to the research team at Charles Sturt University and spent a decade in the care of the State. He also spent over a decade as an advisor to independent and Labor members of the NSW Parliament. He is studying a Bachelor of Criminal Justice at Charles Sturt University.