Castan Centre for Human Rights Law
The official blog
Native Title
Victorian Charter
Civil and political rights
Freedom from arbitrary detention
Freedom from cruel inhuman and degrading treatment
Freedom from hate speech
Freedom from racial discrimination
Freedom from slavery/forced labour
Freedom from torture
Freedom of assembly
Right to a fair trial
Right to enter own country
Right to family protection
Right to vote and be elected
Cuba (Guantanamo Bay)
Economic Social and Cultural Rights
Right to Food
Right to Health
Right to housing
Human Rights Institutions
Australian Human Rights Commission
Office of the High Commissioner for Human Rights (OHCHR)
Parliamentary Joint Committee on Human Rights
UN Human Rights Treaty Bodies
Closed environments
Corporations and human rights
Extraterritorial obligations
Nonhuman Rights
Prisoners' Rights
Refoulement
Right to Connect
Same sex rights
Diplomatic Immunity
Humanitarian intervention
International maritime law
The Use of Force
Allan Asher
Castan Centre
Chris Mitchell
Dan Mori
David Hicks
Derryn Hinch
Gabrielle Giffords
George Brandis
George Pell
Gillian Triggs
Ian Thorpe
Isaias Afwerki
John Howard
Jonathan Moylan
Julie Bishop
Julie Posetti
Kevin Rudd
King Mswati III
Mahinda Rajapaksa
Michael Thurston
Myuran Sukumaran
Olivier De Schutter
Paris Aristotle
Paul Kagame
Pauline Hanson
Robert Doyle
Romeo Dallaire
Sami Ben Gharbia
Scott Lively
Stephane Charbonnier
Ted Baillieu
The Yes Men
Tony Abbott
Troy Davis
Waleed Aly
Expunging convictions for gay sex: an old wrong is finally righted
Published October 17, 2014 October 17, 2014 by Dr Paula Gerber in Australia, Australian Law, Criminal law, Discrimination
By Paula Gerber
Almost two years ago, The Conversation published an article, "Wiping the slate clean: historic convictions for gay sex must be expunged". The article discussed the British government's moves to remove convictions for gay sex that were recorded before the decriminalisation of homosexuality in the UK.
This week, the Victorian parliament passed the Sentencing Amendment (Historical Homosexual Convictions Expungement) Bill 2014, and MPs from both sides of politics acknowledged the role that article played in raising awareness of this issue and ultimately leading to long-overdue law reform.
The negative impact of convictions for gay sex are being felt today, more than ever. As Human Rights Law Centre executive director Hugh de Kretser observed:
What we're seeing with massive increases in criminal record checks is that this has much greater potential for discrimination and stigma than it had, say, 20 or 30 years ago when these offences were decriminalised.
Bipartisan regret for the harm done
I was privileged to be able to witness the parliamentary debates that preceded the passing of this legislation in Victoria. Three men who have been burdened with criminal convictions for much of their adult lives were also present for this historic occasion.
Members of both parties made moving speeches acknowledging the wrongs that had been done to Noel Tovey, Tom Anderson, Peter McEwan
and countless other gay men.
Victorian Premier Denis Napthine told parliament:
It is now accepted that consensual sexual acts between adult men should never have been a crime. These historical convictions have caused ongoing harm and hurt to those who were prosecuted and have led to significant personal difficulties, particularly in regard to employment and travel as well as the stain on their characters, the psychological effects and the effects on people who know they have a conviction on their record. They were convictions that should never have appeared there, and it is about time they were expunged.
The legislation has been criticised for not going far enough, because it does not include a formal apology. For example, Member for Footscray Marsha Thomson said:
The Labor Party has given a commitment that under an Andrews government we would issue a formal apology to people who were convicted of homosexual offences under the Sentencing Act 1991. That is an important thing to do because it has taken too long to get here.
The issue of a posthumous apology is also important. Again, because we have taken so long to get here, we need to ensure that the families of those men are able to hold their heads up high and know that their relatives did absolutely nothing wrong. The state did them a disservice, and it has taken too long to recognise this.
How is a conviction erased?
Labor MP Marsha Thomson wanted a formal parliamentary apology as well as expungement.
So how will this long-overdue reform be implemented? Member for Prahran Clem Newton-Brown, a driving force behind this bill, has indicated that the Department of Justice will have a process in place for implementing it by mid-2015.
Persons who have been convicted of a historical homosexual offence (and pursuant to a late amendment from Labor, the family of such a person, if the person is deceased) can apply to the Department of Justice for the conviction to be removed from their records. Offences covered include "the abominable crime of buggery", "loitering for homosexual purposes" and other indecency offences where the conduct would be lawful under today's laws.
The department can refuse to expunge a conviction if the conduct would still constitute a criminal offence today because, for example, one of the parties did not consent or was under age.
The department must make a determination on an application as promptly as possible. If an application is refused, the individual may apply to the Victorian Civil and Administrative Tribunal to have that decision reviewed.
The effect of an expungement is that an individual can swear under oath that he does not have a criminal record (assuming the historical gay sex conviction is their only conviction) and is not required to disclose it for any purpose.
The holder of official records relating to the conviction – courts, police, Office of Public Prosecutions, etc. – must, upon being notified by the Department of Justice of the expungement, in relation to any electronic records:
remove the entry;
make the entry incapable of being found; and
de-identify the information contained in the entry and destroy any link between it and information that would identify the person to whom it referred.
In relation to non-electronic records, the holder of the record must annotate the entry with a statement to the effect that it relates to an expunged conviction.
Now for the rest of Australia
MP Bruce Notley-Smith has moved that the NSW parliament follow Victoria's lead.
AAP/Jennifer Polixenni Brankin
Only time will tell how smoothly the system will work in practice. It looks like the rest of Australia may quickly follow Victoria's lead.
The Criminal Records Amendment (Historical Homosexual Offences) Bill 2014, introduced into the New South Wales parliament by MP Bruce Notley-Smith, has been debated and passed by the lower house today. With a smooth passage expected through the upper house, the reform will soon be signed into NSW law. South Australia is reportedly considering similar legislation.
There have also been calls for Tasmania to pursue such reforms.
Anybody needing assistance in having a historic conviction for gay sex expunged can contact the Human Rights Law Centre.
To receive notification of new posts, click "sign me up" at the top.
To become a Castan Centre member (it's free), click here.
To Follow the Castan Centre on Twitter, click here.
Dr Paula Gerber
Tags: criminalisation of homosexuality, gay sex conditions, lgbt, lgbti, lgbti rights
Previous Post Previous post: Explainer: Does Cambodia refugee deal comply with the convention?
Next Post Next post: Protecting the rights of LGBTI people: are things getting better or worse?
Expunging convictions for gay sex: an old wrong is finally righted | Australian Law Blogs October 17, 2014
andreaolivaresjones
Azadeh Dastyari
Joanna Kyriakakis
mariaosullivan
Marius Smith
Melissa Castan
patrickemerton
Sarah Joseph
Ronli Sifris
Tania Penovic
All Categories Select Category Australian Law (155) administrative law (1) Bill of Rights (4) Constitutional Law (32) Implied freedom of political communication (9) Inconsistency of Laws (2) Indigenous recognition (9) Separation of powers (3) Criminal law (10) Discrimination law (23) High Court (5) Indigenous Rights (15) Jurisdiction (2) Queensland (1) Victoria (2) Legal Aid (3) Migration Law (20) Native Title (1) Victorian Charter (13) Civil and political rights (150) Freedom from arbitrary detention (15) Freedom from cruel inhuman and degrading treatment (16) Freedom from discrimination (23) Freedom from hate speech (12) Freedom from racial discrimination (10) Freedom from slavery/forced labour (3) Freedom from torture (20) Freedom of assembly (7) Freedom of conscience (1) Freedom of Expression (39) Freedom of religion (8) Right to a fair trial (6) Right to enter own country (1) Right to family protection (2) Right to life (14) Right to privacy (16) Right to vote and be elected (4) Countries (188) Afghanistan (5) Australia (108) Azerbaijan (2) Brunei (1) Burma (1) Cambodia (4) Cameroon (1) Canada (1) Chad (2) China (2) Cook Islands (1) Cuba (Guantanamo Bay) (1) Ecuador (1) Egypt (3) Eritrea (1) Fiji (1) Finland (1) France (2) Germany (1) Ghana (1) India (1) Indonesia (8) Iran (2) Iraq (2) Israel (1) Kenya (2) Kiribati (1) Kyrgyzstan (1) Libya (4) Luxembourg (1) Malawi (1) Malaysia (1) Nauru (9) Nigeria (2) Palau (1) Papua New Guinea (15) Philippines (1) Russia (5) Rwanda (2) Samoa (1) Saudi Arabia (1) Scotland (1) Senegal (1) Solomon Islands (2) Somalia (1) South Africa (1) South Korea (1) Sri Lanka (11) Sudan (2) Swaziland (1) Sweden (2) Syria (1) Taiwan (1) Thailand (2) Tonga (1) Tunisia (3) Turkey (1) Tuvalu (1) Uganda (4) United Kingdom (6) Brexit (1) Northern Ireland (1) United States (22) Vietnam (6) Economic Social and Cultural Rights (23) Right to Education (3) Right to Food (2) Right to Health (12) Right to housing (2) Right to Work (2) Human Rights Institutions (49) ASEAN (1) Australian Human Rights Commission (7) CEDAW (1) European Court of Human Rights (3) Human Rights Council (10) International Criminal Court (2) Office of the High Commissioner for Human Rights (OHCHR) (1) Parliamentary Joint Committee on Human Rights (3) UN General Assembly (2) UN Human Rights Treaty Bodies (11) United Nations (16) Human Rights Issues (285) #COVID-19 (3) Abortion (11) Apartheid (1) Asylum (65) Blasphemy (1) Boycotts (1) Child sexual abuse (2) Children's rights (28) Citizenship (1) Climate Change (4) Closed environments (3) Corporations and human rights (11) COVID-19 (4) Crimes against Humanity (2) Cultural Relativism (1) Death penalty (5) Disability Rights (2) Discrimination (33) Drugs (1) Environment (3) Euthanasia (2) Extraterritorial obligations (2) Freedom (9) Humanitarian aid (4) Indigenous rights (22) Land Rights (2) National security (1) Nonhuman Rights (2) Peacekeeping (1) People with disabilities (2) Police Accountability (1) Prisoners' Rights (13) Privacy (6) Protest (4) Racism (11) Refoulement (5) Refugees (59) Reproductive Rights (3) Right to Connect (1) Same sex rights (42) Surveillance (1) Targeted Killings (1) Technology (3) Terrorism (9) War crimes (2) Women's Rights (19) International Law (16) Diplomatic Immunity (2) Economic sanctions (1) Humanitarian intervention (2) International Criminal Law (2) International Humanitarian Law (2) International maritime law (2) Investment Law (2) The Use of Force (1) lgbti rights (8) Media (33) Internet (5) Social media (17) People (89) Agnes Callamard (1) Alan Jones (2) Allan Asher (1) Andrew Bolt (5) Andrew Chan (2) Aung San Suu Kyi (1) Baltasar Garzón (1) Castan Centre (6) Chelsea Manning (1) Chris Mitchell (3) Dan Mori (1) David Hicks (2) Derryn Hinch (1) Eddie Mabo (1) Edward Snowden (1) Fraser Anning (1) Gabrielle Giffords (1) George Brandis (10) George Pell (1) George W Bush (2) Gillian Triggs (2) Ian Thorpe (2) Isaias Afwerki (1) Jamal Khashoggi (1) John Howard (1) Joko Widodo (1) Jonathan Moylan (1) Julian Assange (5) Julie Bishop (1) Julie Posetti (3) Kevin Rudd (1) King Mswati III (1) Mahinda Rajapaksa (1) Malcolm Turnbull (3) Mark Zuckerberg (2) Michael Thurston (1) Myuran Sukumaran (2) Nelson Mandela (1) Olivier De Schutter (1) Osama Bin Laden (1) Paris Aristotle (1) Paul Kagame (1) Pauline Hanson (1) Pope Francis (1) Robert Doyle (2) Romeo Dallaire (1) Sami Ben Gharbia (1) Scott Lively (1) Scott Morrison (2) Stephane Charbonnier (1) Susilo Bambang Yudhoyono (1) Ted Baillieu (2) The Yes Men (1) Tim Wilson (3) Tony Abbott (5) Tony Blair (1) Troy Davis (1) Vladimir Putin (2) Waleed Aly (1) Popular culture (18) Art (4) Human Rights Arts & Film Festival (2) Charlie Hebdo (1) Eurovision Song Contest (1) Pussy Riot (2) Sport (7) The Lord of the Rings (1) Tintin (1) Solidarity (1) Temporary migrants (1) Uncategorized (2)
Castan Centre Twitter Feed
RT @7NewsMelbourne: .@DjokerNole's deportation has put a spotlight on Australia's immigration response, with tens of thousands of people wa… 10 hours ago
Do I have to provide my name on my Census form?
COVID Vaccination Mandates Do Not Contravene Australia's Human Rights Laws
Troy Davis, the death penalty, and international human rights law
Jeopardising access to justice for people experiencing mental illness
The Expansion of Ministerial Discretion in Refugee Law
The High Court reminds us that immigration detention is not simply at the government's pleasure
Abolish the Joint Committee on Human Rights? We should be strengthening it instead…
The Right to Die with Dignity and Autonomy in Victoria
Interstate Human Rights Jurisprudence Confirms the Certainty and Coherence of the Victorian Charter, but We Can Learn a Thing or Two from Queensland
Archives Select Month December 2021 November 2021 October 2021 August 2021 July 2021 June 2021 May 2021 March 2021 November 2020 September 2020 August 2020 July 2020 June 2020 May 2020 April 2020 March 2020 February 2020 November 2019 September 2019 July 2019 June 2019 May 2019 April 2019 January 2019 December 2018 October 2018 September 2018 August 2018 July 2018 June 2018 April 2018 March 2018 February 2018 December 2017 November 2017 October 2017 September 2017 August 2017 June 2017 May 2017 March 2017 February 2017 January 2017 December 2016 November 2016 October 2016 September 2016 August 2016 July 2016 June 2016 May 2016 April 2016 March 2016 February 2016 December 2015 November 2015 October 2015 September 2015 August 2015 July 2015 June 2015 May 2015 April 2015 March 2015 February 2015 January 2015 December 2014 November 2014 October 2014 September 2014 August 2014 July 2014 June 2014 May 2014 April 2014 March 2014 February 2014 January 2014 December 2013 November 2013 October 2013 September 2013 August 2013 July 2013 June 2013 May 2013 April 2013 March 2013 February 2013 January 2013 December 2012 November 2012 October 2012 September 2012 August 2012 July 2012 June 2012 May 2012 April 2012 March 2012 February 2012 January 2012 December 2011 November 2011 October 2011 September 2011 August 2011 July 2011 May 2011 April 2011 March 2011 February 2011 January 2011 December 2010 November 2010
Posts on this blog represent the views of the individual authors and not Castan Centre policy. Comments are welcome, but inflammatory, offensive or irrelevant comments will be removed.