The announcement indicates that
The Tasmanian Liberal Party, both in Opposition and in Government, has supported expunging historic criminal records for homosexual activity which was previously illegal.
Additionally, a formal apology to those affected, including families and loved ones of those who are deceased, will be made when the legislation is introduced in the house.
The legislation will expunge convictions for the following offences:
Section 122(a) – sexual intercourse against the order of nature;
Section 122(c) – consensual sexual intercourse between males; and
Section 123 – indecent practices between males.
These sections of the Tasmanian Criminal Code were repealed in 1997 after homosexuality was decriminalised in Tasmania but the repeal did not address the implications for those with existing criminal records pertaining to consensual homosexual activity.
The legislation will ensure that any individual prosecuted under these offences will no longer suffer distress or be disadvantaged by a criminal record in relation to travel, employment, and volunteering.
The legislation will also allow other offences under which people may have been charged for consensual homosexual activity to be added by regulation at a later date so these historical offences can also be expunged from a person’s criminal record.
I thank the Anti-Discrimination Commissioner for her report titled ‘Treatment of historic records for consensual homosexual sexual activity and related conduct’, which has helped to progress this important issue.
The Government has approved some variations from the model for expunging offences proposed by the Anti-Discrimination Commissioner, in order to allow us to implement legislation and open the scheme to expunge offences as efficiently and as soon as possible.
Rather than requiring the establishment of a Historic Criminal Records Expert Panel as proposed by the Commissioner, applications will be processed through the Secretary of the Department of Justice, consistent with how other jurisdictions manage this process.The Anti-Discrimination Commissioner's April 2015 report [PDF] has the following recommendations
R1 A dedicated scheme is established to enable historic criminal and related records relating to homosexual activities or activities arising because of a person’s diverse sexual orientation or gender identity to be expunged.
R2 All criminal and related records arising from consensual sexual activity and related conduct in situations where the applicant would not have been dealt with by police but for the fact that the applicant was suspected of engaging in sexual activity of a homosexual nature or because of their sexual orientation or gender identity are covered by the scheme, including:
(a) historic criminal records arising in relation to sections 122(a) and (c), and 123 of the Criminal Code involving consensual sexual activity;
(b) historic criminal records arising in relation to other repealed offences used to prosecute activity of a homosexual nature or because of a person’s sexual orientation or gender identity;
(c) historic criminal records arising in relation to associated offences where the applicant would not have been charged but for the fact that the applicant was being dealt with in relation to engaging in conduct of a homosexual nature or their sexual orientation or gender identity;
(d) historic criminal records related to any other offence by which homosexual and perceived homosexual conduct or conduct related to a person’s sexual orientation or gender identity could be punished that do not represent an offence under current law or with which a person could still be charged where a record would not have been arisen but for the fact that the applicant was suspected of engaging in sexual activity of a homosexual nature; and
(e) historic criminal records related to any offence of attempting, conspiring or inciting to commit any of the offences outlined above
R3 The scheme have the capacity for the expunction of historic criminal records of persons of diverse sexual orientation or gender identity in all circumstances where the conduct was otherwise lawful for those in the broader community.
R4 The scheme has the capacity for the expunction of historic criminal records for offences that took place in association with the primary offence and/or records for inchoate offences relating to the primary offence.
R5 Where age is relevant to consideration of whether an act is eligible to be permanently disregarded, the test to be used is whether the same behaviour between males and females would be considered lawful or unlawful in the circumstances.
R6 Any conviction of a young person (and related records), in circumstances where they were the subject of non-consensual sexual abuse by an older person, also be eligible to be permanently disregarded.
R7 The scheme enable a spouse, domestic partner, child, parent, sibling, personal representative or other appropriate representative to seek the posthumous expunction of relevant historic criminal records.
R8 The Government consider issuing a formal apology to those who have suffered because of actions by authorities resulting in a historic criminal record and to the family and loved ones of those who are deceased.
R9 The Government seek the grant of a royal pardon to deceased persons who were convicted under relevant sections of the Tasmanian Criminal Code and other Tasmanian or colonial laws who, as a result of the time that has elapsed since their death, no longer have a spouse, domestic partner, child, parent, sibling or personal representative to make application for a conviction to be disregarded.
R10 Legislation be prepared to establish a dedicated scheme to enable historic criminal records to be expunged with the effect of:
(a) restoring all legal rights as if the historic criminal record had not been made;
(b) providing the right of non-disclosure of all expunged records under all circumstances;
(c) separating all expunged criminal and related records (and all references to them) from a person’s criminal and other records and empowering the Registrar to have custody of those records;
(d) destroying all duplicates of all expunged relevant criminal and other records;
(e) ensuring that the applicant’s privacy and that of any other relevant person are respected; and
(f) prohibiting the disclosure of any information relating to the conviction or related material.
R11 A Historic Criminal Records Expert Panel (HCREP) be established comprising the Anti-Discrimination Commissioner, the Registrar under the Working with Vulnerable People Act 2013 and the Dean of Law at the University of Tasmania. The Panel be authorised authority to make decisions, including binding orders, on applications for expunction of relevant records.
R12 The Anti-Discrimination Commissioner be appointed as Registrar of the scheme.
R13 The Historic Criminal Records Expert Panel be empowered to request and receive all record s considered relevant to assessing an application.
R14 A person who believes they have a historic criminal record that should be permanently disregarded be required to complete an application form, providing details of relevant records and offences, including information relating to the incidents leading to the conviction or other police action.
R15 The application form should authorise the conduct of a police record search and consent to access any other relevant records.
R16 The Registrar be authorised to provide the applicant with access to any records on the basis that any information contained within the records related to the identity or personal details of any person other than the applicant not to be disclosed.
R17 It be an offence to knowingly give the Historic Criminal Records Expert Panel false or misleading information.
R18 If the Historic Criminal Records Expert Panel is satisfied that an order to permanently disregard a historic criminal record was based on false or misleading information or documents that are false or misleading, the Historic Criminal Records Expert Panel be empowered to determine that the historic criminal record is no longer to be disregarded and the record reinstated; with such decisions to be subject to the same review rights as a decision not to order a record be permanently disregarded.
R19 Information provided to the Historic Criminal Records Expert Panel as part of the application and during subsequent investigation not be capable of being used in any proceedings for perjury or similar offences related to statements or evidence given at the time of the original offence.
R20 Decisions to expunge relevant records be binding on all authorities.
R21 A decision that a historic criminal record is not eligible to be disregarded or to reinstate a permanently disregarded record be reviewable by a magistrate in private session under amended provisions of the Magistrates Court (Administrative Appeals Division) Act 2001 (Tas).
R22 Relevant authorities are required to notify the record holder prior to decision or the release of information for other purposes where a record is identified that may be eligible to be expunged. This includes procedures for the conduct of police record checks and the assessment of applications for registration under the Registration to Work with Vulnerable People Act 2013 (Tas).
R23 An order for expunction is to apply to all government records, including official police records, general police records, court documents and general government records.
R24 Expunged historic records be permanently held by the Registrar of the scheme, with all remaining records to contain no indication of the nature of the amendment.
R25 Secondary records or duplicate files held in paper or electronic format related to historic criminal records that are to be expunged should be destroyed.
R26 Where the Historic Criminal Records Expert Panel has ordered that a record be expunged, disclosure of information regarding that record be an offence carrying a serious penalty and the mechanism for investigation and prosecution of such an offence is specified clearly in the legislation.
R27 The Attorney General liaise with the Attorneys General of the Commonwealth and other states and the territories to establish a mechanism for the identification and expunction of all relevant records that have been pro vided to or received from another jurisdiction.
R28 Consequential amendments be made to the Archives Act 1983 (Tas) to give effect to the intent of the scheme.
R29 The definition of ‘irrelevant criminal record’ in section 3 of the Anti-Discrimination Act 1998 (Tas) be amended to included records expunged under the scheme.
R30 Consequential amendments be made to the Annulled Convictions Act 2003 (Tas) and related legislation to provide for the non-disclosure of expunged historic criminal records.
R31 The Registration to Work with Vulnerable People Act 2013 (Tas) be amended as necessary to prohibit consideration of any records expunged under the scheme.
R32 The Registrar of the scheme have authority to release expunged records in specific circumstances.
R33 Arrangements are established to enable, including through an application costs reimbursement mechanism, necessary assistance to be provided to applicants by Community Legal Centres in Tasmania together with bodies in other states and territories such as the Human Rights Law Centre and the Public Interest Advocacy Centre.
R34 Additional resources are made available to the Anti-Discrimination Commissioner to cover the one-off establishment activities for the scheme and the ongoing administrative, investigative and communication activities
