WA Government Introduces Historical Homosexual Convictions Expungement Bill

The decriminalisation of homosexual acts in Western Australia (WA) took place as far back as December 1989, when the Parliament of WA passed the Law Reform (Decriminalisation of Sodomy) Act 1989 (WA) which decriminalised private sexual acts between two people of the same sex and went into effect in March 1990. It has taken since that time to introduce a bill, which if enacted will provide for the expungement of convictions for a select number of historical offences under now repealed sections of the Criminal Code of WA. The legislation giving effect to this is the Historical Homosexual Convictions Expungement Bill 2017 (WA) (the Bill) introduced into the Wa Parliament last Wednesday (1 November 2017).

Some Context

The Law Reform (Decriminalisation of Sodomy) Act 1989 (WA) while an advance in decriminalising the law was also viewed as "...one of the strictest gay law reform Acts in Australia", making as it did the homosexual age of consent between males 21 (the age for hetrosexuals being 16) and also creating new offences under state law, including making it a crime for a person to "...promote or encourage homosexual behaviour as part of the teaching in any primary or secondary educational institutions..." or make public policy with respect to the undefined promotion of homosexual behaviour. The equalisation of consent ages was not achieved until the passing of the Acts Amendment (Gay and Lesbian Law Reform) Act 2002 (WA) in 2002, legislation that also repealed the laws with respect to promotion of homosexual behaviour in public policy and in educational institutions.

The matter of men previously been convicted of consensual homosexual sex crimes prior to decriminalisation in 1990 has been much discussed in WA in recent years. The Law Society of Western Australia in 2016, for example, submitted a detailed proposal to the state Attorney General, which made the recommendation that a scheme be established allowing individuals who were convicted of an historical homosexual offence to apply to have that conviction "expunged" (see - Law Reform Relating to Historical Homosexual Convictions: Law Society of WA, 26 April 2016). Both major parties in WA discussed the prospect of expunging consensual homosexual sex crimes and the current, newly elected, WA Government has become the one to actually introduce legislation.

What the Bill Does

The Bill establish an administrative scheme for the expungement of convictions for a select number of historical offences under now repealed sections of the Criminal Code (WA) involving homosexual activity.

The Bill provides that an eligible person, an appointed guardian or enduring guardian, or a relative or partner of a deceased eligible person, may apply to the Chief Executive Officer of the Department of Justice to have a conviction for a historical homosexual offence expunged. 

Once convictions are expunged, the effect of expungement is that the person will no longer be required to disclose that conviction, including under oath. Further, government agencies identified in the Bill as holding official criminal records relating to such an expunged conviction will be required, upon notification of an expungement from the CEO, to annotate the records relating to that conviction - such an annotation must indicate that "...the records relate to an expunged conviction". The unlawful disclosure of records which relate to an expunged conviction will constitute an offence.

The Biil is to be judicially reviewed by the State Administrative Tribunal which is given the jurisdiction to review decisions regarding expungement. The Bill also provides that where a conviction has been expunged on the basis of false or misleading information, that conviction can be revived.

The Bill further provides that employment discrimination on the ground of an expunged conviction is unlawful. This aspect of the legislation is said to be "...modeled on the approach taken in the Spent Convictions Act 1988 (WA) and that Act’s relationship with the Equal Opportunity Act 1984 (WA)". The effect is that a complaint of discrimination on the grounds of an expunged conviction may be lodged with the Equal Opportunity Commission and investigated.

The Bill also amends the Working with Children (Criminal Record Checking) Act 2004 (WA) to provide that an expunged conviction is deemed a “. . . non-conviction charge” for the purposes of section 4 of that Act.

The Bills Introduction and the Apology

It is reported by the ABC News, that the Bill was introduced into the WA Parliament with an apology from the Premier to the between ". . . 200 and 300 people [who] were affected" (the exact number is unknown). The Premier is reported as saying:

The Premier's apology is reported as having been endorsed by the opposition and passage of the legislation through the WA Parliament is not expected to be controversial.

Other Jurisdictions

The position in other states has also been rectified by the enactment of similar legislation, with the last State to enact legislation before WA being Queensland earlier this year. For more on the other jurisdictions see our previous articles:

• Historical Homosexual Sentencing Convictions Expunged in VIC
• Historical Homosexual Sentencing Convictions to be Expunged in TAS
• Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 (QLD)

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. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Historical Homosexual Convictions Expungement Bill 2017 (42 of 2017) [WA] and supporting material as reported in the TimeBase LawOne Service.

WA Government issues apology to men convicted over homosexual acts (ABC News)

Historical homosexual convictions: plan to expunge criminal records in WA