Historical Homosexual Sentencing Convictions to be Expunged in TAS
Tuesday 22 December 2015 @ 12.12 p.m. | Crime | Legal Research
Tasmania will follow the other States in Australia by also moving towards expunging historical homosexual convictions. Unlike Victoria, however, Tasmania will also move to apologise to people charged under the historical legislation.
Background to Legislation
The discussion in Tasmania follows an investigation in 2014 by the state's Anti-Discrimination Commission which released a Discussion Paper in April 2015 commenting on the legislation.
The report covers 34 recommendations in relation to the historical homosexual conviction scheme including expungment of charges and amendments to be made to legislation.
The Proposed Legislation
Tasmania was the last Australian jurisdiction to decriminalise homosexuality in 1997, and is the fifth to announce it will introduce legislation next year to wipe related historical convictions.
The legislation will allow men to apply for expungement of convictions they received under three previous laws criminalising “sexual intercourse against the order of nature”, “consensual sexual intercourse between males”, and “indecent practices between males”.
According to a media release from the Premier, 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.
Although the sections of the Tasmanian Criminal Code were repealed in 1997 after homosexuality was decriminalised in Tasmania, the repeal did not address the implications for those with existing criminal records pertaining to consensual homosexual activity.
According to the ABC News, Attorney-General Vanessa Goodwin said decriminalisation itself was not enough:
"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 government has also said applications for expungement will be ruled on by the secretary of the Department of Justice, as they are in New South Wales. That decision goes against a recommendation by the anti-discrimination commissioner, Robin Banks, whose report, “Treatment of historic records for consensual homosexual sexual activity and related conduct”, called for an independent panel, led by the commissioner and including the registrar under the Working with Vulnerable People Act 2013 and the dean of law at the University of Tasmania.
Reaction from the Public
Tasmanian Gay and Lesbian Rights Group spokesperson Rodney Croome praised the move:
"For those men who were prosecuted in Tasmania for simply being in same-sex relationships it will be a great relief to be rid of the disadvantage and stigma that comes with an unfair criminal record...I am proud that Tasmania will be the first state to apologise to those arrested and their families because it will lift a burden from their shoulders and send the strongest message yet that Tasmania is a progressive and inclusive society."
Shadow attorney-general Lara Giddings also welcomed the proposed legislation:
"We also welcome moves to apologise to those directly affected, their families and the loved ones of those who have passed away...While this legislation and any subsequent apology cannot undo past wrongs, it is another step on the pathway to ending discrimination."
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.
