In January I wrote to the ACT Attorney-General, given his Government's high-profile support for same-sex marriage, best illustrated through its poorly-drafted and accordingly unsuccessful Marriage Equality (Same Sex) Act 2013 (ACT).
I called on the Government to emulate those other jurisdictions through statutory change to enable expungement. Change would not involve fundamental drafting or administrative difficulties. It would arguably be endorsed by many of the people who are disquieted by notions of gay marriage.
Three months later I have received the following reply
Dear Professor Arnold
Thank you for your email dated 13 January 2014 which you called on the ACT Government to commit to expunging the criminal records of people convicted of certain homosexual offences in the ACT prior to 1976. This follows the recent announcement that the Victorian Government would legislate later this year to expunge the criminal records for those who were convicted of homosexual sex prior to 1981.
I acknowledge that a criminal conviction for consensual sexual acts done in private is unjust for some individuals in our community. The ACT Government is strongly committed to achieving equality for the gay and lesbian community and in my view this should include addressing the harms associated with our historic legal legacy.
Historic offences are a complex and sensitive area of the criminal law and any changes should only be made after careful consideration of all relevant issues.
I have asked my directorate to provide me with advice on the legislative options in the context of measures adopted or being considered by other jurisdictions.Regrettably the Government has not committed to quickly addressing what it acknowledges is an historic wrong. The Directorate will do its homework but apparently the Attorney-General is not prepared to take a stand.
The response might well have been written by the suave Sir Humphrey Appleby in Yes Minister mode. Yes there is injustice but because the matter is "complex" and "sensitive" and there's a need for "careful consideration of all relevant issues" let us not be hasty in seeking law reform.
It does not require much bravery on the part of the Attorney-General to issue a media release indicating that
a) the Government is aware of developments in Australia and overseas
b) the Government acknowledges an historic wrong and
c) the Government is moving to address that wrong.We might assess the Government's commitment on that basis, rather than its familiarity with political weaselspeak.
