SENTENCING AMENDMENT (HISTORICAL HOMOSEXUAL CONVICTIONS EXPUNGEMENT) BILL 2014
Written on the 14 October 2014
Motion of Hon. D. M. DAVIS (Minister for Health).
Ms CROZIER (Southern Metropolitan) -- I am very pleased to rise this afternoon to speak on the Sentencing Amendment (Historical Homosexual Convictions Expungement) Bill 2014. I understand that the debate on this very important bill is also currently taking place in the Assembly. This is an important bill, and I think members will agree that in relation to what has occurred in the past in Victoria, the bill presents an opportunity to correct legislation that was established when there were very different views about the matters the subject of this bill.
In 1980 a Liberal Premier introduced the Crimes (Sexual Offences) Bill to decriminalise homosexuality in Victoria. On 18 November 1980, in speaking on the bill, the then Attorney-General, the Honourable Haddon Storey, said:
The bill results from a complete review of all aspects of the law relating to sexual offences in Victoria . . .
The law in this state concerning sexual offences has remained virtually unchanged since the last century. Many of its provisions are anachronistic, anomalous or ineffective.
In 2014 there are still men who participated in homosexual activity prior to its decriminalisation and who still have a criminal record in Victoria.
In my view that indicates that our legislation remains anachronistic, and I think most Victorians would also hold that view.
I am very pleased that it has been another Liberal government that has led the way in correcting the records of those men who were convicted of having gay sex before its decriminalisation in 1980.This bill will expunge the criminal conviction records of those men. I would like to recognise the work of the Attorney-General, the Honourable Robert Clark. I also recognise the work of the member for Prahran in the Legislative Assembly, Clem Newton-Brown, who has been very forthright in his views on this issue. He has put those views to the Attorney-General and to the community and he has led the way on this matter. That is why the bill has come before the house and why we are having this debate today.
An article in the Age tells the moving story of Mr Noel Tovey, who is now almost 80 and has lived with a criminal conviction since 1951. Why?
Because in 1951, at a party in an inner city suburb in Melbourne that was raided by police, he was charged with the crime of having sex with another man.
Earlier this year the Premier attended the Midsumma Festival -- I add that that was the first time a Premier had attended the launch of the Midsumma Festival -- where he publicly announced this amendment to legislation. The announcement was received with wide support. In an Age article, the Premier is reported as having said:
It is now accepted that consensual acts between two adult men should have never been a crime ... 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.
He also said 'these convictions have been allowed to stand for far too long.'
It is not just the social and psychological impacts that need to considered. Individuals with convictions such as these have been subjected to limitations in a number of areas, including their ability to volunteer, to travel or even to take employment opportunities. These impediments have led to serious health and wellbeing implications for many gay men.
This bill is well overdue.
I concur with the Premier's comments that it provides a 21st century approach to these matters. The bill allows anyone to apply to have a historical homosexual conviction expunged. The definition of a historical homosexual offence can be any sexual offence or any public morality offence that was used to punish homosexual behaviour. As the Attorney-General highlighted in his second-reading speech:
Although allowing historical convictions to be expunged is simple in concept, it presents a legally complex problem. The offences that have over the years been used to charge those engaged in consensual homosexual activities are often the same offences that were used to charge cases of truly criminal sexual assault.
These matters must be carefully considered. The offences that are to be expunged must relate to consensual adult behaviour and must not relate to behaviour or acts that would still be regarded as a crime under our current legal system. This distinction is absolutely critical in relation to whether somebody's criminal record can be expunged.Very careful consideration needs to be undertaken, so two assessment tests will apply to determine that status. As the Attorney-General has highlighted, the complexities surrounding the legal issues in relation to this need to be very carefully considered. Basically the assessments will conclude whether the person was charged due to the homosexual nature of their conduct and, if that is the case, whether that conduct would be illegal under the current law. If it is deemed that the conduct was of a homosexual nature and would be legal today, the conviction can be expunged.
The Secretary of the Department of Justice will have the responsibility of making decisions about the facts surrounding a conviction and will determine the eligibility for a conviction to be expunged -- that is, decide whether an act that occurred prior to decriminalisation would still be deemed criminal in today's law or whether it was just an activity relating to consensual adult behaviour. If the secretary has any doubts as to the assessment of the case and the decision that is to be made, advice can be sought from a variety of legal experts. I think that is very important to note.It is not just one person making a determination in relation to some of the complexities, and I again highlight the complexities surrounding the legality of these particular determinations. If there is any doubt, the secretary has the power to bring in legal experts to enable a decision to be made or an assessment to be concluded.If an applicant is refused and does not agree with an assessment that has been made, they have the right to appeal to the Victorian Civil and Administrative Tribunal. In the assessing of every case, however, we must be absolutely certain that the process does not inadvertently expunge convictions of true criminal behaviour. I think the Attorney-General, as I said, made it very clear in his second-reading speech that this bill does not relate to behaviour that would be deemed criminal under today's law. This is about the behaviour of adults engaging in consensual sex with one another that is not deemed illegal under today's law.
I think this bill will go a long way to giving great comfort to those individuals who have suffered for years. They can now finally have those outdated views and convictions expunged from their records. Again, in the words of the Premier, these convictions have been allowed to stand for far too long. I commend Clem Newton Brown, the member for Prahran in the other place, and the Attorney-General for the work they have undertaken to ensure that this bill is before us today, and I wish the bill a speedy passage.
Ms PULFORD (Western Victoria) -- I note Ms Crozier's final remark about wishing the bill a speedy passage. By way of explanation for members of the house, I will start with some of the procedural complexities arising from the government having this legislation considered concurrently in both houses. In the debate underway in the Legislative Assembly the shadow minister for equality, my colleague and good friend Martin Foley, the member for Albert Park, has indicated that the Labor Party will seek to amend this bill to two effects.
It is not my intention to formally move those amendments in this place, but having had some discussion with the Leader of the Government, Ms Pennicuik from the Greens and the Acting Clerk, it is my intention to ask if those amendments can be circulated in my name. These amendments are exactly the same as those the Labor Party is asking the government to consider in discussions that are occurring in the corridors around the Legislative Assembly.
The way this government seeks to run its business program is perhaps presenting an inelegance in the way we are going about considering this very important issue and reform. On behalf of all of those people who are seeking a solution, I ask for the chamber's forbearance. What we plan to do at the conclusion of the second-reading debate in this house is delay the consideration-in-detail stage and any debate on the amendments that I might move until we have a better idea of what is going on in the Assembly. The Labor Party has a couple of concerns about this bill and is seeking the government's assistance with them.The amendments have been presented to the Attorney-General, and I believe the government is considering its response. It all seems a bit messy, but the parties are discussing how to do this as well and effectively as possible.
In moving on from that description of how we have gotten to where we are today, I will talk to the substantive question. The Sentencing Amendment (Historical Homosexual Convictions Expungement) Bill 2014 is an incredibly important piece of legislation for a number of Victorians who have suffered discrimination and the terrible burden of a criminal conviction for something that we no longer consider to be a crime. I place on the record my sincere sorrow and regret that there are members of our community who have carried with them for decades the burden of convictions for things that should never have been considered crimes.
The bill amends the Sentencing Act 1991 to allow for the expungement of historical homosexual convictions.
Historically a wide range of offences, including buggery and gross indecency, have been used to prosecute homosexual activity. Public morality offences such as loitering for homosexual purposes and behaving in an indecent or offensive manner have also been used.
In 1980 the Hamer government enacted legislation to decriminalise consensual homosexual acts as part of the modernisation of sexual offences. Interestingly this legislation was recently described in a newspaper article about the life and times of former Premier Hamer. I encourage members to read this article, which was written by Tim Colebatch and published in the Age of 27 September. I quote from the article:
Sexual attitudes had changed dramatically since 1960, but the laws had not. Tolerance had replaced intolerance.
The article goes on to say that Mr Hamer declared his support for the legalisation of homosexuality. He asked his Attorney-General, Mr Storey, to take on the reform.
The article describes a fractious party room, a difficult internal debate and a difficult argument within the Liberal Party which ultimately led to some far-reaching legislation. The article says of the bill introduced at that time that: It introduced a common age of consent for boys and girls, increased penalties for sexual offences against young people in the perpetrator's care, outlawed rape in marriage (for separated couples), broadened the definition of penetration, and classified offences into different grades.
The article relates that a number of Liberal Party members crossed the floor to vote with The Nationals against deleting buggery from the statutes. However, the Attorney-General and the Premier prevailed and the law was changed.In writing about the matter, Mr Colebatch describes the sexual offences act as a vanguard reform, one which defined Victoria as a tolerant, broadminded state in which real issues were talked about and tackled. I am sure all Victorians would have been proud to have led many other states in the commonwealth in this reform.
In the 34 years since, however, a number of people have carried the burden of those convictions which have remained on the record for all this time. In February 2013 the Victorian Labor Party announced that if it is successful at the election in a few short weeks it intends to expunge historical homosexual convictions. In January of this year, the coalition government declared an intention to do the same and this bill is a result of the coalition's work on this law.It is important to note the advocacy of a number of people and groups, including the Victorian Gay and Lesbian Rights Lobby and its leadership. Earlier I had the pleasure of briefly meeting Mr Noel Tovey. He is watching the debate in the Assembly. A number of people have sought to right this wrong for very long time. This is an important day for them. It is for them that we ask for forbearance while the politicians negotiate and consider the amendments and work on the finer detail in the two houses at one time in the hope that we can get this right.The bill establishes a scheme under which a person convicted of a historical homosexual offence can apply to the Secretary of the Department of Justice to have their conviction expunged. This will be inclusive of findings of guilt even if no conviction was recorded. The bill places the onus on the applicant to show that the conviction ought to be expunged.
The secretary must refuse an application unless they are satisfied that the offence is a historical homosexual offence and, on the balance of probability, the following tests in relation to the applicant are satisfied: that the applicant would not have been charged but for the fact that the applicant was suspected of having engaged in the conduct constituting the offence for the purpose of or in connection with sexual activity of a homosexual nature; and that the conduct, if engaged in by the applicant at the time of making the application, would not constitute an offence under the law of Victoria. In short, expungements will be granted for convictions or guilty findings for things we no longer believe are a crime.
If the secretary refuses an application, the bill provides a mechanism for the applicant to seek review by the Victorian Civil and Administrative Tribunal. Under this bill it is the intention that once the conviction has been expunged it will be treated as though it had not been imposed.
Successful applicants -- that is, those who have had their convictions expunged -- will no longer be required to disclose past convictions, and there are a number of consequential arrangements.
Importantly, Victoria Police and the Office of Public Prosecutions will be required to remove or alter any other records they have. When we talk about wiping the slate clean we are talking about old files going and electronic records being deleted to establish that the conviction never existed. This is an important part of what this bill provides for, but I think it is incumbent upon us to recognise that for people who have been caught up in this injustice there have been many decades during which their lives have been adversely affected by this.The legislation provides that a person whose conviction is expunged will not have a right to compensation of any kind merely on account of the expungement itself.
The Victorian Labor Party supports and works with the lesbian, gay, bisexual, transgender and intersex(LGBTI) community on developing policy in a whole range of areas. It is my great pleasure to participate as a member of the Victorian Labor Party's LGBTI policy committee. Together we work on issues across the broad spectrum of policy development where members of the LGBTI community experience discrimination or disadvantage. These issues are many and broad, and they include access to housing, the need for children to attend school in an environment where they are supported and the fact that government services are often not suitably responsive to people's situations and needs, forcing many to re-enter the closet when they enter aged care. Great improvement has been made in these areas over the years, but there is still a great deal of work to do.
The Labor government was very proud to introduce into this Parliament dozens of bills that sought to remove discrimination against LGBTI members of our community.A great many new arrangements were made to reflect people's domestic arrangements and the need for all Victorians to be able to participate fully in society without being discriminated against because of their gender identification or sexual orientation. There are also some fabulous initiatives that have been supported by Labor in the past and that Labor supports into the future, including the Safe Schools Coalition, which ensures that young people questioning their gender and sexuality can feel safe in their school environment. An Andrews Labor government would extend the Safe Schools Coalition to all Victorian schools, not just to those that currently enjoy what is simply a wonderful program.
It is important to put things right by cleaning the slate with this legislation, but as I indicated, there are a couple of amendments the Labor Party believes would improve this bill. The first relates to posthumous application.We believe the bill should provide for posthumous expungement applications to be made by the partners, families or legal representatives of men with convictions. This is not a feature of the current bill, and we believe the inclusion of posthumous applications would greatly enhance it. For surviving family members, achieving justice in this regard is still an important and worthy goal, and we would very much like the government to adopt Labor's suggestion to this effect.Labor's second amendment seeks to change the Equal Opportunity Act 2010. We seek to make it unlawful to discriminate against a person on the basis of that person having an expunged conviction. We believe this could be considered as a separate attribute by expressly including a person who has been charged with or convicted of an offence that has been expunged under this new legislative regime. We seek the government's agreement to our amendments, and we seek the assistance of members of both houses to give this proper consideration.
Our society is much more tolerant of sexual diversity than it has been historically. The reforms of the Hamer government in 1980 were very important, but it is important today that the Parliament clear the names of people who were charged with and found guilty of offences that our society could no longer even consider to be crimes. The notion that people would be charged for engaging in sexual activity in a homosexual relationship is now abhorrent to the overwhelming majority of people in our society, and it is important that this bill pass.
Labor seeks to improve the bill in a couple of ways, and I have indicated I am not entirely sure whether or not the opportunity will come for us to discuss these amendments in more detail in the committee stage. We await news from our colleagues in the Legislative Assembly, but the Labor Party stands proudly with members of the LGBTI community. We are committed to removing discrimination wherever we find it.
We are also committed to, in government, providing government service delivery that is responsive and sensitive to the needs of members of the LGBTI community.
Like Ms Crozier, who is now in the chair, I wish this bill speedy passage. It would have been nice if we had had it a few weeks ago so that we would not be caught in this crazy procedural dance. It is important that we get it right. But, like Ms Crozier, I wish the bill speedy passage -- hopefully amended and hopefully by the end of today.
Ms PENNICUIK (Southern Metropolitan) -- The Sentencing Amendment (Historical Homosexual Convictions Expungement) Bill 2014 will amend the Sentencing Act 1991 to establish a scheme under which convictions for certain offences related to conduct carried out for the purposes of or in connection with sexual activity of a homosexual nature may be expunged.
It is one of those bills which comes before us that will make a real difference to the lives of many people, both symbolically and practically.We are in a strange situation because the bill is being debated concurrently in both chambers of the Parliament. As you, Acting President, Ms Pulford and I speak on the bill, members in the Assembly are also speaking on it. This is an unusual situation.
I concur with Ms Pulford that it would have been preferable to see the bill introduced into the house a little earlier rather than on the first day of the last sitting week of the Parliament, given that the announcement to bring in the legislation was made at the beginning of the year. Nevertheless this is important legislation which the Greens are happy to support. Its passage through the Parliament will make Victoria the first state to introduce laws allowing historical convictions for homosexual activity to be expunged. We should be ashamed that it has taken all this time, some 34 years, for this to happen, not to mention the travesty that people were convicted under such draconian laws in the first place.In preparation for debate on the bill I read the report entitled Righting Historical Wrongs -- Background Paper for a Legislative Scheme to Expunge Convictions for Historical Consensual Gay Sex Offences in Victoria, published in January by Anna Brown and Madeline Forster from the Human Rights Law Centre in partnership with the Victorian Gay and Lesbian Rights Lobby, Gay and Lesbian Health Victoria, Liberty Victoria and the Victorian AIDS Council and Gay Men's Health Centre. It is a very interesting report.
We have heard about the decriminalisation of homosexuality in 1981 under the Hamer government. In the lead-up to that in 1977 a report by the then Equal Opportunity Advisory Council commissioned by Premier Hamer recommended decriminalising sex between men in Victoria, and three years later in 1980 the Victorian Parliament enacted legislation decriminalising consensual male to male sex and related offences.In its report the advisory council also recommended action to expunge gay sex convictions because of the stigma associated with those offences and criminal convictions. The advisory council recognised that criminal records sometimes caused needless discrimination in employment, particularly where a homosexual offence is concerned. So far as the authors of this year's report were aware no action was taken by the Hamer government, or to date by any succeeding Victorian government, to implement this recommendation. It is something we should all think about, because we are certainly late in coming to this.The report is peppered with many case studies of how over the years these convictions have affected those who were convicted under the laws prior to 1981, including Mr Noel Tovey, who was mentioned both by Ms Crozier and Ms Pulford. In his case study amongst other things he points out that the police had raided a party when he was 17 years old and he was taken away for questioning.
He says that after an alleged police beating he was forced into confessing that he had had sex with a person who he had not in fact had sex with. He pleaded not guilty in court, but the jury found him and the other person guilty. He spent months in Pentridge Prison awaiting trial but was eventually released on a good behaviour bond. Once out of prison Mr Tovey changed his name in order to apply for national service. He had lived his life under a different name until then, but his mother revealed after his release that his biological father's name was Tovey. He believes that in this way he has been able to fudge his past over the years and seek to do things that having a sexual conviction would normally preclude. Mr Tovey had to resort to changing his name in order to avoid the stigma and discrimination associated with having such an offence registered against him.There are other cases of men living in fear of being exposed and people who were exposed as very young men, even minors under 18 years, who were humiliated in school and in front of their families et cetera. The report makes very sobering reading; it is something we should all have been very aware of.Page 26 of the report relates to current practice. Paragraphs 65, 66 and 67 state:
- Under the current Victoria Police information release policy convictions for past gay sex offences may be displayed on criminal history checks.- The Victoria Police information release policy generally operates so that any convictions or findings of guilt, apart from minor traffic offences, are disclosed on a person's criminal history check if they have committed any offences in the past 10 years.
- If a person doesn't commit any offences for a 10-year period, the criminal history check will come back clear. But if they commit another relevant offence, their entire history, including any offences committed as a juvenile, will be disclosed on the criminal history check. Special provisions apply to offences which result in a sentence of imprisonment of longer than 30 months, which will always be disclosed.
- Accordingly, a man convicted of an offence for consensual gay sex in the 1970s should, accordingly to the information release policy, have the offence disclosed on their criminal history check if in the last 10 years, they have been found guilty of any other offences other than minor traffic offences.
That is the current situation, which we need to rectify. Paragraph 73 of the report succinctly says that:
Men have lived for decades with the shame of being identified as criminally culpable for their sexual expression, potentially causing untold psychological and emotional harm. The stigma has also inhibited many men from telling their story publicly or even sharing their secret with family and friends.As I mentioned, there are many case studies peppered through the excellent report.
The bill allows people to make a confidential application to the Department of Justice to have the records of their convictions removed. Once expunged, the person will be treated as though the conviction had never happened. They will not be required to disclose a conviction and it will not provide grounds for exclusion from any office or privilege. On considering an application the secretary will assess it together with any relevant official records to determine whether the applicant was convicted of a historical homosexual offence, which may be either a sexual offence or a public morality offence, and decide whether on the balance of probabilities the conduct would be illegal today. The secretary will be able to draw on the advice of legal experts if necessary in making the decision, and where there are other parties involved official records and other evidence will be examined in order to establish that the act was consensual.
An anonymous caller to my office said he was concerned about the evidentiary provisions as there will be some people with historical homosexual convictions that it will be hard for them to get expunged since the person with whom they performed the consensual act may be deceased.
He recognised that there cannot be a perfect system and that there need to be evidentiary requirements, but he still felt the bar was set too high, despite understanding that evidence is examined on the balance of probabilities and that written evidence could be provided, if not from the person who was involved in the conduct constituting the offence then from a person other than the applicant with knowledge of the circumstances in which their conduct occurred. I think the caller raised a fair point, but we all realise that given the passage of so much time there can never be a perfect system, though hopefully the bill will mitigate the issues brought about by this nearly 34-year gap between now and when the law was changed to decriminalise homosexual activity.
The Greens have also consulted on the bill with representatives of the Human Rights Law Centre and Corey Irlam, co-convener of the Victorian Gay and Lesbian Rights Lobby. They commented that they were supportive of the bill, although they have highlighted some areas that are raised in the Human Rights Law Centre's report, Righting Historical Wrongs, in particular with regard to three of the report's recommendations. In our discussions with them the Greens came to the conclusion that rather than moving more amendments myself I should write to the Attorney-General to request that he amend the bill to include three recommendations from that report which in the view of those stakeholders and the Greens would improve the bill. I wrote to the Attorney-General on 23 September requesting that the government bring forward these amendments itself. I cannot understand why these three particular recommendations were left out of the bill, given that the government has gone to the trouble of putting forward the legislation.
These recommendations include recommendation 3 of the report, which recommends that:
Recommendation 4 recommends that:
I agree that that is an oversight in the bill. In the course of a person applying for the expungement of a conviction, the secretary may well come across this type of information about a particular person as the secretary goes through the processes outlined in clause 3 as to the processes for application and the secretary's checking of information through Victoria Police and court records.
At present under the bill these would not be expunged at the same time as the conviction. This seems to be an oversight that could have been addressed in the bill.
The last recommendation that the Human Rights Law Centre and the Victorian Gay and Lesbian Rights Lobby wanted included in the bill is posthumous expungement. I understand from Ms Pulford's contribution that that is an amendment that the ALP will be moving in the lower house and may be moving as we are speaking now. It may have already been moved. I am not sure. That recommendation states:
I requested that the Attorney-General incorporate those amendments into the legislation, but I have not had any response from him in that regard. While we agree that those amendments should be included, given the legislative load that faces us this week we did not want to have the passage of the bill through Parliament held up in any way. When the legislation comes into effect I would expect and hope that the government of the day, whichever it is, will be monitoring its progress as to how well it is working and whether there are any amendments that need to be made in the future to make it work more effectively and in a timely manner.
Clause 3 includes the processes that must be followed by the person making application and the mandatory tests that must be applied by the secretary, which have already been mentioned by Ms Crozier and Ms Pulford. The bill also provides that a person can withdraw an application at any time before the secretary determines it but that the secretary must determine an application promptly.If the application is refused, the secretary must inform the applicant that they can appeal to the Victorian Civil and Administrative Tribunal (VCAT) for a review of the decision and the secretary must explain to the applicant how to apply to VCAT.The effect of a conviction being expunged will be that it will be removed from the person's criminal history, if they have one and, if they have no other convictions, its removal will mean they have no criminal history. There will be no need to disclose the conviction and the conviction or the non-disclosure of the conviction will not be any ground for the exclusion of a person from any appointment, post, status or privilege or be any ground for the revocation of any appointment, post, status or privilege held by the person or for the dismissal of the person from any post.
The bill also deals with VCAT proceedings and includes confidentiality provisions. For example, a person looking at an application must not directly or indirectly disclose any information acquired whilst performing a function or exercising a power under the relevant part of the principal act. Doing so will attract a maximum penalty of 120 penalty units.
The bill provides that there is no entitlement to compensation for an expunged conviction but that nothing prevents a person from being entitled to compensation for anything that occurred while the person was serving a relevant sentence -- for example, a person having been injured while serving a sentence in prison for such a conviction.
The Greens are very happy to support this bill, and we commend the government for bringing it to the Parliament, notwithstanding that I believe it has come a bit late -- in fact many years, indeed decades, late in terms of the effects the ongoing existence of those convictions have had on the lives of so many people. Also, in terms of this parliamentary year, it would have been preferable to have had this bill introduced earlier so that we, the ALP and of course the government could have worked through the types of amendments that have been raised with us. Doing so could have improved what is a good bill.
I note that in her contribution Ms Pulford mentioned a possible amendment to the Equal Opportunity Act 2010 to add having received a conviction for a homosexuality offence prior to 1980 as an attribute on the grounds of which it would be illegal to discriminate against someone under that act.Ms Pulford talked about the previous government having introduced dozens of bills to reduce discrimination and to allow people to fully participate in society and said that there is more work to do on discrimination. I agree. In particular, under the Equal Opportunity Act it is still possible for religious organisations to discriminate against people on the basis of their sex, their sexuality, their marital status, their parental status and a number of other attributes. Given Ms Pulford's remarks, I look forward to the ALP supporting the Greens when the Greens again try to remove those exemptions from the Equal Opportunity Act, which we certainly will do again. We have done so in each Parliament. It is quite strange to be supporting the exemptions remaining in the act whilst at the same time saying one supports the removal of all discrimination, which the Greens certainly support. With those remarks, I note that the Greens are very happy to support this bill.
Motion agreed to.
Read second time.
Ordered to be committed later this day.
Please sign up to receive Georgie's e-newsletter