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Historical care and protection orders

Corrections to address the harm done to people, who as children, were given criminal records just because of their contact with child welfare.

A statement acknowledging that, historically child welfare and criminal justice systems were not effectively separated, and as a consequence care and protection applications by the state were recorded on criminal records. Therefore many children were recorded as having criminal records when they had not committed any crimes or been found guilty or convicted or any offences. Sometimes this happened even before a child reached the age of criminal responsibility. This practice has led to life-long consequences for many of the children.

The statement also acknowledges that Aboriginal children were disproportionately impacted by these state welfare policies.

See s 592A—Children, Youth and Families Act 2005 (Vic).

Orders are not to be treated as finding of guilt

On 31 December 2018, the Children, Youth and Families Act 2005 (Vic) makes it clear that a relevant historical care and protection order is not:

  • to be treated as a finding of guilt for any purpose
  • to be disclosed in response to any question taken under oath (including in any legal proceeding)
  • a factor to be considered when referring to a person's character or fitness
  • a proper ground for refusing or revoking or dismissing a person from any appointment, post, status or privilege.

Note: If a person has already been adversely affected in relation to an appointment, post, status or privilege, that person may re-apply for the position at any time.

See s. 592E, 592F—Children, Youth and Families Act 2005 (Vic).

What are relevant historical care and protection orders?

These orders are defined as being any orders made by a court as a result of an application for an order for the care and protection of the person when they were a child. These include orders made under the:

  • Neglected and Criminal Children's Act 1864 (Vic)
  • Aborigines Protection Act 1869 (Vic)
  • Children's Court Act 1986 (Vic)
  • Children's Welfare Act 1928 (Vic)
  • Community Welfare Services Act 1970 (Vic)
  • Children and Young Person's Act 1989 (Vic)

See s. 592C—Children, Youth and Families Act 2005 (Vic).

Exceptions

Relevant historical care and protection orders do not include any orders where a child was found guilty of a criminal offence by a court.and the order was made as part of the sentence imposed by the court for that offence.

See s. 592C(2)(b)—Children, Youth and Families Act 2005 (Vic).

Responsibilities of police and other agencies

Police and other agencies that send out official records, must also release information that addresses and corrects the apparent criminal nature of any such record and clarifies that the orders were not findings of guilt or convictions. For police, this particularly applies to any records released under Freedom of Information Act 1982.

See s. 592G, 592H—Children, Youth and Families Act 2005 (Vic).

More information

Legislation

Children, Youth and Families Act 2005 (Vic)

  • Chapter 7A—relevant historical care and protection orders
    • s. 592A—statement of recognition
    • s. 592C—defines 'relevant historical care and protection order
    • s. 592D—this apples to an order made in any court
    • s. 592E—effect of relevant historical care and protection orders
    • s. 592F—effect of relevant historical care and protection orders on any appointment, post, status or privilege
    • s. 592G—obligations of responsible agencies (not police)
    • s. 592H—obligations of Victoria Police

See Children, Youth and Families Act 2005 (Vic).

Updated