Bill to expunge historical gay sex convictions introduced in Victorian Parliament

VICTORIAN Attorney-General Robert Clark has introduced the long-awaited bill to expunge historical convictions of consensual sex between men in Victorian Parliament today.

The bill will be debated in the next sitting of parliament, which is expected to be in October. Once the bill passes, it is expected that the scheme would be established and ready to accept applications by mid-2015.

The news comes just a day after the Victorian Government announced its intention to introduce the bill this week, and less than 24 hours after NSW’s Coogee state Liberal MP Bruce Notley-Smith provided a notice of motion in NSW Parliament for his intention to introduce a Private Member’s Bill which, if passed, would extinguish historical convictions for consensual sex between men in the state.

Under the proposed bill, Victorians with convictions received prior to 1981 when consensual homosexual sex was a crime will be able to apply to have those convictions expunged, meaning they will be treated as if the conviction had never occurred or existed.

People with historical consensual gay sex convictions face stigma as well as discrimination in employment, travel and if they want to undergo volunteer work.

The proposed bill also set out the process in which one would have to undergo to have those convictions expunged.

“While we cannot turn back the clock and undo what has occurred in previous decades, we can act to ensure that Victorians do not have to continue to suffer from the legal consequences of what occurred,” Clark told the Legislative Assembly today, in what was the first full reading of the bill.

“This bill establishes a process that will allow people to apply to have historical homosexual convictions expunged. Once expunged, that conviction will be treated as law as if it was never composed. It will not be released as part of a criminal history check, and the person will be protected from ever having to reveal that conviction.

“Although allowing a historical conviction 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 offence of sexual assault.”

Clark went on to say that because of this, the expungement scheme would be built around two tests.

“Was the applicant charged with the offence because of the homosexual nature of the conduct? And, if so, would that conduct be legal today?” he said.

“When both of those tests are satisfied, the conviction will be expunged.”

The Attorney General said the convictions referred to public morality offences that targeted homosexual behaviours, such as loitering, or the old buggery and sodomy offences.

He said Victorians with these convictions will be able to confidentially apply to the Secretary of the Department of Justice, who will assess the application to determine whether the convictions are for offences that are no longer crimes today. The Secretary may also draw on the advice of legal experts or request further information if necessary, such as details to demonstrate if the conduct was consensual.

Following a successful application, the Secretary will notify the courts, police and office of public prosecutions to have the conviction expunged.

“It’s important that this scheme not inadvertently expunge convictions for truly criminal behaviour, and that those who committed serious sexual offences in the past cannot attempt to use this scheme to hide these convictions,” Clark said.

“If the Secretary is not satisfied of either of the two tests, the applicant’s application will be refused, and the conviction will stand.

“However, there will be a right of review… if the application is refused.”

The bill was met with bipartisan support in the Assembly, includingAlbert Park state Labor MP and spokesperson for LGBTI equality Martin Foley and Prahran state Liberal MP Clem Newton-Brown, whose electorate has the highest proportion of gay constituents in Victoria.

Representatives from the Victorian Gay and Lesbian Rights Lobby (VGLRL) and Human Rights Law Centre (HRLC) were also present at the hearing of the bill in parliament today, with both groups being a driving force in having the bill come to fruition and commending the collaborative approach taken by the Victorian Government to achieve its introduction.

They also urged all MPs to pass the legislation before the Victorian state election in late November.

HRLC advocacy and strategic litigation director Anna Brown described the legislation as a historic moment for Victoria.

“Convicting a person because of the gender of the person they slept with should never have been a crime. The legislation introduced today recognises this wrong and will erase the convictions that have negatively impacted on many people’s lives for decades,” she said.

VGLRL co-convenor Corey Irlam said the bill would be historically symbolic for the community, and also improve the health and wellbeing of the those affected.

“For a man convicted by one of these historical and unjustcrimes, this is huge. That person can now apply for a job or volunteer position without this historical offence hanging over their head,” he said.

Last month, Clark attracted national criticism for his support of the anti-gay World Congress of Families conference in Melbourne — he was set to give a “Welcome to Victoria” speech but pulled out at the last minute.

Main image: Representatives from the Human Rights Law Centre and Victorian Gay and Lesbian Rights Lobby flank Victorian Attorney General Robert Clark (centre, red tie) and Prahran state Liberal MP Clem Newton-Brown (holding up the bill) after Clark’s historic speech in Victorian Parliament today.