'Sex offenders no more: Historical homosexual offences expungement legislation in Australia' by
Allen George in (2019)
Alternative Law Journal comments
The capability to remove homosexual offences from a criminal record has finally been adopted across Australia with the introduction of expungement legislation. This article analyses the reasons for its introduction, considers the number of people affected and suggests that a pardon, similar to the Turing Law in the UK, may address the low number of applications. The passing of this legislation not only restores the offender, it also allows current legislators to address the injustice of their predecessors' actions and to demonstrate continued support for LGBTIQ communities.
George argues
A milestone was reached for gay men across Australia by the end of 2018 as all states and territories had passed legislation allowing for the expungement of historical homosexual offences. No longer will members of LGBTIQ communities with such convictions have to live with the stigma and consequences of a criminal record for sexual activity that is legal today. It is somewhat surprising that despite decriminalisation of consensual homosexual sex within all Australian jurisdictions between 1975 and 1997, those convicted were ignored and left with a cumbersome legacy of being lawfully branded a ‘sex offender’, until recently. Gerber and O’Byrne analysed the legal basis of this imposition and noted that the usual manner of clearing a criminal record via spent conviction legislation was not available to those with a conviction categorised as a sexual offence, which included some homosexual offences.
Parliaments often engage in creating legislative amendments or new laws to criminalise and regulate behaviour. The passing of expungement legislation (Table 1), by contrast, is an example of decriminalisation leading to the legislative redress of past laws and their negative effects. Furthermore, this legislation allows application for posthumous expungement. This ability to erase the past through application from living relatives raises the issue of granting pardons to all deceased convictees in Australia similar to that enacted by the British Parliament. The passing of expungement legislation is also part of a larger project of legal recognition and equalisation encompassing issues such as the age of consent, de-facto relationships and same-sex marriage.
These legislative changes and the debate around them indicate an adoption of elements of restorative justice by lawmakers across Australia toward gay men and LGBTIQ communities. Restorative justice is ‘an option for doing justice after the occurrence of an offence that is primarily oriented towards repairing the individual, relational and social harm caused by that offence.’ This form of justice attempts to repair harm to the victim and allow the offender to make amends. Conceptualising these changes as restorative justice, however, raises some interesting questions: who is the victim, who is the offender and how are amends to be made? Although homosexuality was described as a victimless crime in the latter part of the 20th century, parliaments upheld the criminalisation of such acts between men. In debates on expungement, legislatures across Australia have recognised that not only were these laws unjust and out-of-step with social norms, but that former parliamentarians were the cause of such legal and social injustice.
This article examines the legal basis of the need for expungement legislation before outlining the adoption of such laws throughout Australia. The reasons why such laws were passed are analysed, drawing on parliamentary debate across Australia, and the success of expungement schemes are considered. Finally, reasons for taking an average of 30 years since decriminalisation to introduce expungement and whether expungement and the possibility of a pardon provide justice to those convicted of an historical homosexual offence are analysed.
'Homophobia and Homonationalism: LGBTQ Law Reform in Canada' by
Miriam Smith in (2019)
Social and Legal Studies comments
This article explores the tensions and contradictions between the recognition of same-sex relationships and the development of legal prohibitions against discrimination on the one hand versus the ongoing symbolic and actual criminal regulation of gay sex on the other hand. I describe these tensions as they have unfolded over the last 40 years through the most recent attempts by the Liberal government of Justin Trudeau, elected in 2015, to reform the criminal law, to expunge the record of past criminal convictions for same-sex behavior, and to apologize and compensate lesbian, gay, bisexual, transgender, queer (LGBTQ) communities for past discrimination. I argue that this bifurcated pattern of public policy change and legal reform demonstrates the persistence of political homophobia alongside of homonationalist celebration of queer normativity. By considering the federal government’s long-standing failure to reform criminal laws that encapsulate formal-legal inequality of LGBTQ people, the article highlights the persistence of homophobic public policy alongside homonationalist policy discourse and genuine progress in the legal recognition of queer rights. I conclude by considering the implications of this mix for theorizing homophobia and homonationalism in law and policy.
Smith argues
In recent years, lesbian, gay, bisexual, transgender and queer (LGBTQ) people have emerged into the limelight of politics and policy in Canada as elsewhere. Whether debates over same-sex marriage or the current Canadian Prime Minister (Justin Trudeau) marching in Pride parades, ‘gay rights’ has become an international signifier of Canadian diversity and tolerance. Yet, as this article will show, Canadian progress in the legal recognition of LGBTQ rights has been accompanied by homophobic public policy that sanctions the symbolic and actual criminalization of anal sex. This article explores the tensions and contradictions between the recognition of same-sex relationships and the development of legal prohibitions against discrimination on the one hand versus the ongoing symbolic and actual criminal regulation of gay sex on the other hand. I selectively describe these tensions as they have unfolded from the 1969 (partial) decriminalization of homosexuality through the most recent round of LGBTQ law reform by the Liberal government of Justin Trudeau, elected in 2015. I argue that this bifurcated pattern of public policy change and legal reform demonstrates the persistence of legal homophobia alongside homonationalist celebrations of queer inclusion. I then consider the implications of this analysis for contemporary theorizing about queer politics and law.
Much discussion of contemporary LGBTQ politics in countries such as Canada emphasizes the role of homonormativity and homonationalism. In this view, advances in LGBTQ rights recognition privilege same-sex couples who are just like straights except for their sexual orientation. They are thus ‘normative’ but ‘homo’ and, hence, ‘homonormative’. Some discussions of homonormativity also emphasize the link to neoliberalism, seeing the domesticated same-sex couples as contributing to neoliberal values of responsibilization and privatization (Duggan, 2002). Discussions of homonationalism have emphasized the ways in which mainstream LGBTQ politics has linked the pursuit of rights to the celebration of national tolerance in contrast to the racialized other, especially Muslims in the wake of the war on terror (Puar, 2007). Other work has emphasized the racialized nature of mainstream LGBTQ political and legal activism in cases such as Canada’s, including the overwhelming dominance of Whites in the movement and the ways in which the movement appropriated the rhetoric of US civil rights in the pursuit of marriage equality (Lenon, 2005, 2011). In the North American context, a number of scholars have recently considered the impact of settler colonialism for the politics of queer movements, exploring the ways in which queer movements have perpetuated the legacies and ongoing practices of colonialism (Morgensen, 2010; Smith, 2010).
In contrast, this article follows in the footsteps of recent scholarship emphasizing the political persistence of homophobia, even in what Browne and Nash (2014: 332) call ‘the places where we have won’. By considering the federal government’s long-standing failure to reform criminal laws that encapsulate formal-legal inequality of lesbians, gay men, and bisexuals, compared to straights, the article highlights the persistence of homophobic public policy alongside homonationalist policy rhetoric and genuine progress in the legal recognition of LGBTQ rights. I conclude by considering the implications of this mix for theorizing homophobia and homonationalism in law and policy. The concept of homonationalism excludes systematic consideration of legal homophobia and yet cases such as Canada show how both homonationalism and legally encoded homophobia can coexist. This suggests that more theoretical and empirical attention needs to be paid to the enduring role of legal homophobia even in countries such as Canada that are thought to be exemplars of the unalloyed recognition of LGBTQ rights.
