Expunged

The Age reports that the Victorian Government "will become the first state to erase the criminal records of men who were previously convicted for having gay sex", presumably on the model of the opt-in expungement provisions of the UK Protection of Freedoms Act 2012 noted here.

The move will end decades of anxiety for countless men who were prosecuted before homosexuality was decriminalised in Victoria in 1981. Before decriminalisation, men who had consensual sex with other men were convicted of crimes such as ''buggery'' and ''gross indecency with a male person'', restricting them from travelling, volunteering or applying for jobs such as teaching. …

Premier Denis Napthine will reportedly state that

"these convictions have been allowed to stand for far too long'' and had stigmatised many people who had been forced to live with the burden of a criminal record. 

''It is now accepted that consensual acts between two adult men should have never been a crime,'' Dr Napthine said. ''The Liberal government, led by Sir Rupert Hamer, recognised this and decriminalised homosexual sex in the 1980s. We also recognise the social and psychological impacts that have been experienced by those who have historical convictions for acts which would no longer be a crime under today's law.'' 

The changes follow similar laws recently introduced in Britain by David Cameron's Conservative government, which allow an estimated 16,000 convictions to be wiped from police records. In Victoria, legislation will be introduced this year, paving the way for a showdown between the state Coalition and Labor over the so-called ''pink vote'', particularly in electorates such as Prahran and Albert Park. 

Under the policy, anyone with a historical conviction for an offence relating to homosexual acts would be able to apply to have their conviction expunged, provided the offence is not a crime under current legislation. 

The application would then be reviewed to ensure the offence related to consensual sex with a person of legal age. If determined the offence was no longer a crime under existing law, the record would be wiped clean. Convictions for non-consensual sex or sex with a minor will remain.

We will now wait, presumably for quite some time, for the other jurisdictions to follow suit. No chance, alas, of a general apology from the ADF for dishonourable discharge of men with a same sex affinity.

The Victorian development appears to reflect the Human Rights Law Centre paper [PDF]. Its recommendations are applicable to the other jurisdictions -

Recommendation 1: (primary offences) 

Any future scheme to expunge gay sex offences should include the following historical offences:

• consensual ‘buggery’ or attempted ‘buggery’; 

• consensual acts of gross indecency between male persons; 

• indecent assault of a person who is a consenting party; 

• loitering or soliciting for homosexual purposes; 

• ‘offensive behaviour’ charges under current and repealed legislation, for acts committed in public which would not be considered offensive by today’s standards; and 

• ‘offensive behaviour’ charges for acts committed in public spaces that could not reasonably be observed by a member of the public. 

Recommendation 2: (other LGBTI people) 

The scheme should accommodate the expungement of offences used against:

• people who did not conform with gender stereotypes, including in dress, mannerisms or appearance, including female impersonators/ drag queens, transvestites and transgender people (including transsexuals, gender queer and/or cross-dressers) where such conduct would be found to be lawful today; and 

• lesbians and other same-sex attracted women, where the criminal conduct would have been found to be lawful had it been engaged in by persons of the opposite sex and therefore lawful today. Further research should be undertaken to identify the offences used against these individuals 

Recommendation 3: (associated and inchoate offences) 

The scheme should accommodate the expungement of:

• convictions for offences that would not have taken place had it not been for a primary offence referred to in Recommendation 1 above eg. resisting arrest; and 

• convictions for inchoate offences relating to a primary offence including, for example, ‘attempts’. 

Recommendation 4: (cautions, warnings, fines)

• A proposed scheme in Victoria should, as is the case in the UK, allow for expungement of cautions, warnings, fines and other reprimands in relation to the specified offences. 

• A review of police and other records should be undertaken to gather further information about how cautions, warnings, fines and other reprimands may be disclosed to the public and removed from a person’s record.   

Recommendation 5: (age of consent)

• A person convicted of an offence for consensual sexual activity with another person, which would not currently be an offence under age of consent laws, should be entitled to have their conviction and any associated records expunged. 

Recommendation 6: (effect of expungement) 

In summary the scheme should:

• remove the conviction from a person’s criminal record; 

• remove any possibility that a person may be treated adversely in law for the former conviction; 

• ensure there is no capacity for the conviction to be made public and protect the privacy of affected individuals; 

• authorise a person not to disclose the fact of their past gay sex conviction (remove the risk of perjury or contract breach); 

• prohibit disclosure of the fact of the conviction by other relevant persons; and 

• repair damage caused by the conviction. 

Recommendation 7: (electronic records) 

The proposed scheme in Victoria must provide that all electronic records of expunged offences must be permanently deleted. This includes records held by:

• Victoria Police; 

• Victorian Courts; 

• Office of Public Prosecutions; and 

• Department of Justice and other Government departments including documents relating to:  working with children checks; and the registration of sex offenders. 

Recommendation 8: (paper-based records)

• Consideration should be given to whether deletion of paper-based records is appropriate and/or practical and, in the alternative, such paper-based records should be redacted or, if redaction is not appropriate, annotated to make it clear that the conviction and the circumstances leading to conviction have been ‘disregarded’ or ‘expunged’. 

Recommendation 9: (perjury and contractual terms)

• Once expunged, a proposed scheme in Victoria should expressly provide that the person is not required by law to disclose the former conviction while under oath. The proposed scheme should follow the UK and Australian federal model under section s85Z of the Criminal Records Act 1914 (Cth). 

• The proposed scheme should also provide that a person may deny an expunged conviction in contract terms and make a contract term requiring such information unlawful. 

Recommendation 10: (explicit prohibition on discrimination)

• A proposed scheme in Victoria should expressly provide that discrimination on the basis of a former gay sex conviction is unlawful. 

• A contract term must not require a person to disclose an expunged conviction and is unlawful to the extent that it does so. 

Recommendation 11: (consequential amendments to other statutes) 

• Care should be taken when drafting proposed legislation to ensure that in addition to removal from criminal history checks, expunged convictions are not considered ‘relevant’ offences for the purpose of Working With Children Checks and other administrative decisions. 

• The Victorian Government should conduct an audit to identify any necessary consequential amendments to other legislation to remove possible discrimination against people with expunged convictions. 

Recommendation 12: (expungement upon application)

• The expungement process should be as simple and easy for affected men as possible and where possible avoid the need for men to apply to have a conviction expunged. 

• The Victorian Government should review access to and content of police records for the purpose of devising a scheme that minimises the impact on individuals. 

• Based on how records are stored and what information is recorded, consideration should be given to whether some or all of the relevant offences can be automatically expunged. 

Recommendation 13: (application process) 

• The application process should be simple and straightforward 

• If an application is refused, the applicant should be provided with reasons and relevant records forming the basis of the refusal. 

• Internal and external review processes should be established. 

• Judicial review of an administrative decision under the scheme should be expressly preserved in the legislation. 

• The scheme should ensure the privacy of all persons applying for expungement or applying to an internal or external review body. 

Recommendation 14: (representation for applicants)

• Applicants should be given an opportunity in the application form or application process to appoint a representative to act on their behalf and receive correspondence relevant to the application. 

Recommendation 15: (posthumous expungement)

• The estate or next of kin of a person who lived with a conviction for a gay sex offence should be permitted to apply for expungement posthumously. 

Recommendation 16: (location of relevant records)

• A review of all possible sources and locations for records be undertaken to determine which agencies should be requested to provide records to assist the decision-making process.   

Recommendation 17: (publicise the scheme) 

The following steps should be taken to publicise the scheme:

• develop a community education campaign and communication strategy in partnership with the LGBTI community, aged care providers, volunteer, employer and employee associations and unions and Victoria Police (who administer criminal record checks); 

• include a notice on criminal record check and Working With Children Check forms and relevant websites about the scheme and how to apply for expungement if a person thinks they may be eligible; and 

• ensure that where a person’s criminal record check or working with children check discloses a conviction listed in the scheme from the relevant period, Victoria Police should provide information about the scheme to that person with the results. 

Recommendation 18: (formal repudiation)

• The Victorian Government should formally acknowledge that the criminalization of homosexuality was wrong and repudiate the laws in question. 

Recommendation 19: (apology)

• The Victorian Government and Victorian Police should also issue a formal apology for past discriminatory laws and practices targeting same sex attracted men in Victoria, taking into account established principles for formal apologies articulated in the 2012 Senate Committee report on forced adoption. 

Recommendation 20: (support and assistance for applicants)

The Victorian Government should fund:

• independent professional support and counselling services for LGBTI people following the introduction of an expungement scheme; 

• an independent LGBTI organisation to provide guidance and advice to affected individuals and assist them through the application process.

The Victorian Premier's media release is here.