Submission re Queensland Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017

Update: 15 July 2017

 

Stop me if you’ve heard this one before.

 

The Queensland Parliament is considering the issue of the decriminalisation of homosexuality but, rather than treating LGBTI people the same as their cisgender heterosexual counterparts, it discriminates against gay and bisexual men, leaving them with criminal records that they would not have were it not for their sexual orientation.

 

No, we’re not talking about the Goss Labor Government’s fundamentally flawed decriminalisation Bill in 1990 which, while decriminalising sex between men over the age of 18, imposed an unequal age of consent for anal intercourse – an injustice that was only remedied in September last year.

 

Instead, we’re talking about 2017, as the Queensland Parliament, and the Palaszczuk Labor Government, appears intent on making the same mistake.

 

As I wrote in my submission to the Parliamentary Inquiry (see the full text at the bottom of this post), the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 will only deliver justice for some gay and bisexual men affected by past homophobic criminal laws, not all.

 

For men punished because of the unequal age of consent between 1991 and 2016, and for those who were convicted before 1991 but would not have been had they engaged in penis/vagina intercourse, this legislation simply perpetuates the injustices they have already suffered, leaving them with inappropriate criminal records.

 

This problem was raised by several people in submissions to the Legal Affairs and Community Safety Committee as part of their inquiry into this Bill (myself included). Unfortunately, rather than listen to the community, Committee members have chosen to listen to the unconvincing arguments put forward by the Department of Justice and Attorney-General (see below for an analysis of their responses on this issue).

 

In their Report, tabled yesterday (14 July), the Committee recommended only that the legislation be passed; it did not make any recommendations to amend the Bill to ensure that all Queenslanders adversely affected by past criminalisation of homosexuality can apply to have their records expunged.

 

This Report means it is now highly unlikely the Queensland Parliament will fix the mess created by the provisions of the Bill, a mess that compounds past mistakes and once again means gay and bisexual men are treated worse because of who they are.

 

This discrimination is enough to invoke a bad case of déjà vu. The only question is, will it take Queensland Parliament another quarter of a century to realise the error of its ways and amend the expungements scheme, in the same way it finally amended the age of consent? Because that is too long to wait for justice, for men who have waited long enough already.

 

Update: 8 July 2017

Following publication of the 13 submissions received by this inquiry (including mine, reproduced in full below), the Queensland Department of Justice and Attorney-General responded to the issues that had been identified. Their letter can be found at the Inquiry website here.

 

Given my submission was the first received that raised serious concerns about the failure of the Bill to expunge the convictions of people prosecuted because of the unequal age of consent between 1991 and 2016, as well as the omission of people aged 16 and 17 prior to 1991, the Department addressed these issues in response to my submission (on pages 2-4).

 

Unfortunately, its response was underwhelming, and in some places seems to have completely missed the point of the expungement scheme.

 

First, the Department’s weakest argument against including people convicted due to the unequal age of consent between 1991 and 2016 was that “[t]he scheme would cease to be historical in nature and it may be considered inappropriate for such recent convictions to be expunged administratively…”

 

To which the obvious response is that it should not matter when an injustice occurred – whether it was 1978 or 2008 – it should be remedied.

 

Second, and of much greater concern, the Department argued that “[e]xtending the scheme to convictions for consensual anal intercourse with 16 and 17 year olds between 1991 and 2016 would mean that the scheme may extend to people who are currently serving sentences relevant to those convictions.”

 

The Department is effectively conceding that there may be people who are currently being punished for offences that would not have applied were it not for Queensland’s discriminatory treatment of anal intercourse for the past quarter of a century. That is not a justification not to extend the scheme – that is a reason to examine those convictions to determine whether they should be immediately overturned.

 

Third, the Department argued that including convictions between 1991 and 2016 due to the unequal age of consent “would require the decision maker to go behind the exercise of recent prosecutorial discretion”. To support this, the Department specifically cites the Director of Public Prosecution’s Guidelines as they existed at 30 August 2016.

 

There are two problems with this particular argument:

 

  • They are suggesting that people should rely on the ‘discretion’ not to prosecute, not just in recent years but also in the much less accepting (and more homophobic) 1990s. I am surely not the only person who harbours fears that at some point in the past 25 years this ‘discretion’ would have been exercised against gay and bisexual men;

 

  • Even the August 2016 guidelines are problematic. They state that “[a] child should not be prosecuted for sexual experimentation involving children of similar ages in consensual activity.” With all due respect, that is not the relevant criteria – the question is whether the people involved would have been convicted had it involved penis/vagina intercourse. Which means that an offence between a 16 or 17 year old and someone aged 18-plus that occurred between 1991 and 2016 should be included (even if that makes some parliamentarians feel uncomfortable).

 

Fourth, the Department argued that “if the scheme was extended to convictions for consensual anal intercourse with 16 and 17 year olds between 1991 and 2016, it would arguably be unfair to continue to restrict the scheme to convictions involving only homosexual activity.”

 

This is perhaps the only legitimate concern raised by the Department. Although it seems to me that, of the three possible options to deal with this issue, they have chosen the worst. These are:

 

  • To leave the scheme as is – which strands some gay and bisexual men without legal address, despite being punished because of laws that Minister for Health Cameron Dick conceded were “a source of discrimination against young people on the basis of their sexual orientation” (in his 2nd Reading Speech for the legislation that finally repealed the unequal age of consent).

 

  • To extend the scheme to gay and bisexual men affected by the unequal age of consent between 1991 and 2016, but not to anal intercourse between men and women. This may be prima facie discriminatory, but it does recognise the disproportionate impact of these laws on same-sex attracted people (who also did not have other lawful options for penetrative intercourse).

 

  • To widen the scheme to include non-LGBTI people who were also punished due to the differential treatment of anal intercourse between 1991 and 2016. This may substantially extend the scope of the scheme, but I would argue that it would be preferable to include these offences than to leave some gay and bisexual men with unfair and inappropriate criminal records, for sex offences, for the rest of their lives.

 

Fifth, and finally, is the worst of the arguments proffered by the Department: “[t]he Department notes that any expansion of the scheme would likely to [sic] increase the cost of the scheme.” That is not a reason to perpetuate injustice against gay and bisexual people who have been persecuted because of their sexual orientation under fundamentally unjust laws – that is a reason to provide additional funding (which, based on the Department’s letter, would likely be relatively modest).

 

Overall, then, I am extremely disappointed by the Department of Justice and Attorney-General’s response to my submission, which appears to be motivated more by staunchly defending the provisions of the current Bill than in grappling with the fact that, if passed, it would still leave some gay and bisexual men living with the consequences of past injustices.

 

Hopefully, the members of the Legal Affairs and Community Safety Committee are more persuaded by the submissions of myself, and others such as long-time campaigner John Frame that raised similar concerns, and propose amendments to address these outstanding issues. Their report is due by Friday 14 July, and I will provide a further update based on their recommendations.

 

Original Post

The Queensland Palaszczuk Labor Government has introduced legislation to establish a process whereby (some) people affected by the historical criminalisation of homosexuality in that state can apply to have those criminal records expunged.

This Bill is currently being considered by the Queensland Parliament Legal Affairs and Community Safety Committee. My submission to their inquiry is published below. For more details on the Bill, and the Committee’s examination of it, click here.

 

Acting Committee Secretary

Legal Affairs and Community Safety Committee

Parliament House

George Street

Brisbane QLD 4000

c/- lacsc@parliament.qld.gov.au

 

Friday 26 May 2017

 

Dear Committee

 

Submission re Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017

 

Thank you for the opportunity to provide a submission in relation to the above-named Bill.

 

I support this legislation in principle, given it is aimed at redressing historical injustices experienced by members of the Queensland lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

 

This Bill builds on the apology, delivered by Premier Annastacia Palaszczuk in Queensland Parliament on 11 May this year, in which she said:

 

“This Legislative Assembly offers its unreserved and sincere apology to all those persons who suffered from prejudice as a result of the discriminatory laws passed by this House, and we acknowledge that your pain and suffering continues.

 

“We acknowledge that shame, guilt and secrecy carried by too many for too long.

 

“Today, in this Legislative Assembly, we place on the record for future generations our deep regret and say to all those affected, we are sorry that the laws of this state, your State, let you down.

 

“To all those affected we say sorry.”

 

These noble sentiments were also reflected in the second reading speech for the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 itself given by Attorney-General Yvette D’Ath:

 

“As this parliament apologises this afternoon, we should never forget that this abuse, this discrimination and this hatred was within our lifetime, and it was done in our name. We have seen important law reform since that time, over many years, in many stages. That includes significant reforms passed in the current Palaszczuk government, some with bipartisan support. Despite these important legislative changes, the pain and anguish caused by that earlier discrimination has never been removed for those affected Queenslanders. I am very proud to be a Labor Attorney-General finishing the important work that the Goss government started, and I am determined to get it right.”

 

Unfortunately, while I support both of these statements, on a practical level I cannot support the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 in its current form.

 

That is because the Bill fails to address all relevant historical homosexual convictions, and instead only offers redress for one subset of the people affected by the criminalisation of homosexuality in Queensland.

 

This failure is based on two key flaws in the proposed expungement scheme.

 

The first flaw is that the Bill is limited to offences committed before 19 January 1991 – which is when the Criminal Code and Another Act Amendment Act 1990 came into effect.

 

As noted in the Explanatory Notes for the Bill, this is intended to “maintain the nexus between the proposed expungement scheme and decriminalisation.”

 

Such a ‘nexus’ would be appropriate if the legislation that implemented decriminalisation was itself non-discriminatory.

 

However, as current members of the Queensland Parliament are no doubt aware, the Criminal Code and Another Act Amendment Act 1990 was fundamentally unjust, in that it continued to subject anal intercourse to a higher age of consent (18 years) than other forms of sex (16 years).

 

This discriminatory approach primarily affected the gay and bisexual male community, and meant that for the following 25 years young same-sex attracted men in Queensland were disproportionately exposed to potential criminal sanctions for penetrative intercourse.

 

This discriminatory approach was only remedied in September last year, with the passage of the Health and Other Legislation Amendment Act 2016. In introducing that legislation, Minister for Health Cameron Dick stated:

 

“The Goss Labor government in 1990 decriminalised homosexuality, but that government introduced an anal intercourse law. The age of consent for consensual anal intercourse was set at 18 years.

 

“The expert panel of health experts asked to consider the implications of the current law advised me that the disparity in the age of consent for different sexual activity has adverse impacts on young people and recommended a consistent age of consent. Queensland cannot continue to discriminate between forms of sexual intercourse, particularly when we know that young people feel compelled to withhold information about their sexual history from health practitioners for fear of possible legal consequences, whether for themselves or their partner. This can have serious implications for their medical treatment, particularly as unprotected anal intercourse is the highest risk behaviour for transmission of HIV. It also has the effect of stigmatising same-sex relationships which in itself can be harmful for an individual’s wellbeing.”

 

Minister Dick concluded his speech by noting that:

 

“The Palaszczuk government is committed to improving sexual health outcomes for all Queenslanders regardless of their sexual orientation or preferences. The bill demonstrates this by standardising the age of consent for all forms of sexual intercourse, reflecting community expectations and removing a source of discrimination against young people on the basis of their sexual orientation…[emphasis added].

 

The Palaszczuk Government was right to identify that an unequal age of consent specifically discriminated against young people on the basis of their homosexuality and bisexuality. They, and the Queensland Parliament more generally, were also right to remedy this injustice by passing the Health and Other Legislation Amendment Act 2016 to finally introduce an equal age of consent.

 

Which makes it all-the-more puzzling why they have made the wrong decision in limiting the operation of the historical homosexual convictions expungement scheme to offences that occurred before 19 January 1991.

 

By tying the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 to the ‘act’ of decriminalisation, they have effectively tied the Queensland expungement scheme to legislation that itself was discriminatory.

 

In doing so, they have developed a scheme that would deliberately exclude people who were charged or convicted for offences between January 1991 and September 2016 who would not have been were it not for their sexual orientation.

 

Those charges and convictions were also unjust, and that injustice should be addressed through this expungement scheme. To do otherwise – to exclude people adversely affected by the unequal age of consent which existed for a quarter of a century – is simply to perpetuate this discrimination.

 

It would also leave Queensland out of step with other Australian jurisdictions – with the equivalent NSW scheme allowing people charged or convicted because of the unequal age of consent which operated there between 1984 and 2003 to apply for those records to be expunged. Queensland should follow suit.

 

Recommendation 1: The Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 should apply to charges and convictions that were caused by the unequal age of consent for anal intercourse between January 1991 and September 2016.

 

The second, related flaw of this legislation is that, even for criminal offences committed prior to 19 January 1991, the right to apply to have these records expunged is limited to acts in which both parties were aged 18 years or over.

 

The rationale for this decision was explained in Attorney-General Yvette D’Ath’s second reading speech in the following way:

 

“[T]he criteria for the expungement of a Criminal Code male homosexual offence in the bill has regard to the age of consent at the date of decriminalisation on 19 January 1991 – that is, 18 years. This retains the expungement scheme’s nexus with the decriminalisation of consensual adult homosexual activity and confirms that the scheme is only applicable to historical charges and convictions. It also ensures that there is no discrimination between people charged or convicted with offences between 1991 and 2016 or people charged before the age of consent for sexual activity other than anal intercourse was changed in Queensland in 1976 from 17 years to 16 years.”

 

The question of what to do about the relevant age of consent prior to 1991 goes to the heart of the purpose of the expungement scheme.

 

If the purpose is simply to address offences prior to January 1991 that were decriminalised following the passage of the Criminal Code and Another Act Amendment Act 1990, then the approach adopted in the legislation, which limits the relevant age of consent to 18 years for all offences, admittedly has some internal consistency.

 

However, if the purpose of the expungement scheme is instead to provide redress to people who were charged or convicted primarily because of their sexual orientation, then I would argue that it must go further.

 

On a practical level, if this legislation is aimed at removing the stain of homophobia and biphobia from past laws, and above all from the criminal records of those who bore their impact, then the relevant test should not be how those acts were treated in 26-year-old legislation that, as we have seen above, was itself inherently flawed.

 

Instead, I believe the test should be whether the relevant act would have been criminalised if it involved consensual intercourse between a man and a woman, and specifically penis/vagina sex. Such a test goes to the core issue, which is discrimination – that the law treated gay and bisexual men differently to heterosexual people.

 

If this principle is adopted, then the scheme would allow people to apply with respect to:

 

  • Charges and convictions where both parties were 17 and over prior to 1976 (when the age of consent for penis/vagina sex was reduced to 16) and
  • Charges and convictions where both parties were 16 and over from 1976 onwards.

 

In this way, the legislation would actually better reflect the view, expressed in the Explanatory Notes, that:

 

“It is also an acknowledgment that the age of consent has changed over the years in accordance with changing societal values and expectations…”

 

That is because it would be based on changing societal attitudes to the age of consent for heterosexual, non-anal, intercourse, and therefore removed from discriminatory attitudes towards anal intercourse, and especially intercourse between men.

 

Further, if this principle was adopted, it would also provide philosophical consistency between those offences before January 1991 and those between January 1991 and September 2016 – provided Recommendation 1 is also adopted, the relevant age of consent would be 16 years for both.

 

Finally, this approach would also be more consistent with the position adopted by other jurisdictions – with section 105G of Victoria’s Sentencing Act 1991 setting out the relevant test as:

 

“on the balance of probabilities, both of the following tests are satisfied in relation to the entitled person:

(i) the entitled person would not have been charged with the historical homosexual offence but for the fact that the entitled person was suspected of having engaged in the conduct constituting the offence for the purposes of, or in connection with, sexual activity of a homosexual nature;

(ii) that conduct, if engaged in by the entitled person at the time of the making of the application, would not constitute an offence under the law of Victoria.”

 

Queensland should similarly ensure that the primary purpose of its expungement scheme is to provide redress for gay and bisexual men who were charged or convicted for offences for penetrative intercourse that would not have applied to penis/vagina sex between men and women.

 

Therefore, the relevant age of consent should be the same as that which applied to heterosexual, non-anal, sex: 17 before 1976, and 16 from that point onwards.

 

Recommendation 2: The Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 should apply to charges and convictions for offences where both parties were 17 and over before 1976, and 16 and over from 1976 onwards.

 

As stated earlier, I support the stated intention of the Queensland Government in developing, and introducing, this legislation: to provide redress for past injustices against members of the LGBTI community.

 

However, as I have explained above, I believe this admirable objective is imperfectly realised in the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 as currently drafted.

 

That is because it would only achieve justice for some of the people adversely impacted by the past criminalisation of male same-sex activity, and not all.

 

If the purpose of the expungement scheme is to provide redress for the homophobic and biphobic application of the criminal law – and I suggest that this is the most appropriate objective – then it should apply to:

 

  • Offences between January 1991 and September 2016 where both people were aged 16 and over
  • Offences between 1976 and 1991 where both people were aged 16 and over, and
  • Offences before 1976 where both people were aged 17 and over.

 

In my view, this would be the closest approximation of treating all people – LGBTI and non-LGBTI alike – equally.

 

It would also ensure that more people, who have been subject to discrimination on the basis of their sexual orientation, and who continue to experience the consequences of this mistreatment, have access to expungement.

 

As observed by Attorney-General Yvette D’Ath in her second reading speech:

 

“We know that this is a deeply hurtful and deeply personal issue for many Queenslanders forced to live with the impact of discriminatory laws for far too long. We know that past convictions have meant there are various circumstances in which convictions or charges for criminal offences have been required to be disclosed.

 

“Forcing the repeated disclosure of those convictions and charges to potential employers, public administrators and others has caused people inconvenience and embarrassment and, worst of all, has forced them to continually relive the trauma associated with their arrest, charge and conviction. This has inhibited people from pursuing employment opportunities, volunteering in their communities and fully participating in civic life right up until today. It hurt those individuals, affected their friends and family, and prevented their full involvement in, and contribution to, our community. In doing so, it not only impacted individuals; it lessened our community more broadly.”

 

I wholeheartedly agree. But I also humbly suggest that these statements don’t just apply to ‘adults’ charged or convicted for offences committed before 19 January 1991 – they also describe the injustice experienced by people who suffered because of the discriminatory age of consent between January 1991 and September 2016.

 

Similarly, these sentiments reflect the adverse treatment of gay and bisexual men charged or convicted for penetrative intercourse before January 1991 who would not have been had it involved penis/vagina sex.

 

Both of these groups deserve justice too. That can and should be delivered through these two amendments to the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017, changes that strive to fully remove the stain of homophobia and biphobia from Queensland’s laws, thereby lessening the awful impact of discrimination on generations of gay and bisexual men.

 

Thank you for taking this submission into consideration as part of this inquiry. If the Committee would like to clarify any of the above, or to request additional information, please contact me at the details provided.

 

Sincerely

Alastair Lawrie

 

Palaszczuk

Premier Palaszczuk’s apology was welcome, but the Bill which gives it practical effect should cover all people adversely affected by historical convictions, not just some.

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Submission re Queensland Criminal Law Amendment Bill 2016

Update 21 March 2017:

Tonight, Queensland Parliament has voted to – finally – abolish the homosexual advance defence (sometimes referred to as the ‘gay panic’ defence) from state law.

This move, while long overdue, is obviously welcome, removing one more piece of homophobic legislation from the Queensland statute books.

To read more about the passage of the Criminal Law Amendment Bill 2016, see tonight’s report in the Brisbane TimesGay panic laws pass Queensland Parliament, removing partial defence’.

Finally, I thank Mr Rob Molhoek, LNP member for Southport, for this ‘shout-out’ in his speech on the Bill:

“In his submission to the committee, Mr Alistair [sic] Lawrie commented that—

Even if a small minority of people remain firmly intolerant of homosexuality, that does not mean there should be a ‘special’ law to reduce the culpability of such a person where they are confronted by an unwanted homosexual sexual advance. To retain such a provision is unjust and discriminatory, and is a mark against any legal system which aspires to fairness.

I agree with that statement made by Mr Lawrie. I firmly believe that discrimination of any type, be it based on sexuality, age, gender or any other matter, has no place in our laws. That is why I support this proposed legislation.”

Update 22 February 2017:

The Report by the Queensland Legal Affairs and Community Safety Committee into the Criminal Law Amendment Bill 2016 was handed down yesterday. For a copy of the report, click here.

Pleasingly, the Committee’s main recommendation is that the Bill – which would finally abolish the homosexual advance defence or ‘gay panic defence’ in Queensland – should be passed.

The discussion of the abolition of this partial defence to murder, from pages 4 to 18, features a number of references to my own submission (which can be found in the post below).

This includes consideration of my concerns (and the concerns of others) about the drafting of and definitions for both ‘circumstances of an exceptional character’ and ‘unwanted sexual advance’.

I welcome the Committee’s interest in these issues, as well as their agreement to my own recommendation that the operation of the law as amended should be reviewed after 5 years to ensure it has functioned as intended (on page 18: “The committee agrees that the proposals in Clause 10 of the Bill should be reviewed in five years to establish whether they have operated as intended”).

For more on how this committee inquiry has been received, see The Brisbane Times article ‘Gay panic law reform bill should be passed, committee recommends’. 

Whether the Bill is passed is now up to Queensland Parliament, including the crossbenchers who hold the balance of power. Hopefully they agree to consign the homosexual advance defence to the history books as quickly as possible.

Original post:

The Palaszczuk Labor Government has proposed legislation that would, among other things, finally abolish the ‘homosexual advance defence’, or ‘gay panic’ defence, under Queensland law.

Its Criminal Law Amendment Bill 2016 is currently the subject of an inquiry by the Legal Affairs and Community Safety Committee. Full details of the Inquiry can be found here – my submission to the inquiry is included below.

The Committee is due to report by 21 February 2017. Hopefully, the homosexual advance defence is consigned to the history books shortly thereafter.

**********

The Research Director

Legal Affairs and Community Safety Committee

Parliament House

Brisbane QLD 4000

lacsc@parliament.qld.gov.au

Monday 16 January 2017

Dear Committee,

Submission re Criminal Law Amendment Bill 2016

Thank you for the opportunity to provide a submission regarding the Criminal Law Amendment Bill 2016.

In this submission I will be focusing exclusively on the proposed amendments to section 304 of the Queensland Criminal Code, as contained in clause 10 of the Bill.

Overall, I welcome these proposed amendments, given the stated intention of the Queensland Government that they will give effect to their election commitment to repeal the homosexual advance defence, or ‘gay panic’ defence.

As noted by Attorney-General the Hon Yvette D’Ath in her second reading speech:

“The amendment to section 304 provides that the partial defence is excluded if the sudden provocation is based on an unwanted sexual advance, other than in circumstances of an exceptional character. I know that there has developed a reference to this amendment as removing the ‘gay panic’ defence – that is, a situation where the defendant claims to have been provoked to murder by a homosexual advance by the deceased. I absolutely acknowledge this amendment’s importance to the lesbian, gay, bisexual, trans and intersex community – as it is to all Queenslanders who have voiced their criticism that such an advance could establish the partial defence.”

Indeed, the abolition of this defence, in the two Australian jurisdictions where it remains in place (Queensland and South Australia) is a priority for the LGBTI community nation-wide.

That is because the idea that a lesser level of criminal punishment – manslaughter rather than murder – should apply where a man kills another man because of an unwanted sexual advance is, to put it simply, abhorrent.

This point was made eloquently by Justice Kirby in his dissent in the High Court’s decision in Green v The Queen [1997] HCA 50:

“If every woman who was the subject of a “gentle”, “non-aggressive” although persistent sexual advance… could respond with brutal violence rising to an intention to kill or inflict grievous bodily harm on the male importuning her, and then claim provocation after a homicide, the law of provocation would be sorely tested and undesirably extended… Any unwanted sexual advance, heterosexual or homosexual, can be offensive. It may intrude on sexual integrity in an objectionable way. But this Court should not send the message that, in Australia today, such conduct is objectively capable of being found by a jury to be sufficient to provoke the intent to kill or inflict grievous bodily harm. Such a message unacceptably condones sexual violence by people who take the law into their own hands.”

The truly offensive nature of the homosexual advance defence is revealed by asking why it invariably applies to non-violent sexual advances by a man to another man. As Kirby asks, rhetorically, if a non-violent sexual advance from one man to another was sufficient to justify forming the intention to kill or seriously wound, why should this not also apply to a non-violent sexual advance by a man to a woman? Further, why shouldn’t a woman who receives an unwanted non-violent sexual advance from another woman have access to the partial defence of provocation? Why doesn’t it also apply to a man who receives an unwanted non-violent sexual advance from a woman?

The answer is that in all of these cases society justifiably expects the recipient of the unwanted sexual advance to exercise self-control. A violent response to an unwanted non-violent sexual advance, to the extent that the recipient forms the intention to kill or seriously wound, is so beyond the pale, or so far out of the ordinary, that we do not extend any reduction in culpability to the offender in these circumstances.

In my opinion, there is nothing so different, so special or so extraordinary, in the situation where the non-violent sexual advance is made by a man to another man, as to justify offering the offender in such cases any extra legal protection. In contemporary Australia, a man who receives an unwanted sexual advance should exercise the same level of self-control as we expect of any other person.

To have a separate legal standard apply to these cases is homophobic because it implies there is something so objectionable about a non-violent sexual advance by a man to another man that a violent reaction is almost to be expected, and at least somewhat excused. This does not reflect the reality of contemporary Australia, where, with the exception of marriage, gay men enjoy (most of) the same rights as other men, and are accepted as equals by the majority of society.

Even if a small minority of people remain firmly intolerant of homosexuality, that does not mean there should be a ‘special’ law to reduce the culpability of such a person where they are confronted by an unwanted homosexual sexual advance. To retain such a provision is unjust and discriminatory, and is a mark against any legal system which aspires to fairness.

The above discussion outlines why the homosexual advance defence is wrong in principle. What should not be forgotten is that the homosexual advance defence is also wrong in practice, or in the outcomes which it generates. After all, the defence does not simply exist in the statute books, ignored and unused. Instead, it has been argued in a number of different criminal cases, sometimes successfully.

This means there are real offenders who are in prison (or who have already been released), who have had their conviction reduced from murder to manslaughter, and most likely their sentence reduced along with it, simply because they killed in response to an non-violent homosexual advance. The legal system has operated to reduce the liability of these offenders even when broader society does not accept that such a reduction is justified. As a result, these offenders have not been adequately punished, meaning that above all these victims have not received justice.

Similarly, the family members and friends of the victims killed in such circumstances have witnessed the trials of these offenders, expecting justice to be served, only to find that the killer is not considered a murderer under the law. Instead, these family members and friends find some level of blame is placed on the actions of the victim, that somehow by engaging in a non-violent sexual advance they have helped to cause and even partly deserved their own death.

For all of these reasons, I strongly support the abolition of the homosexual advance defence, or ‘gay panic’ defence, in any jurisdiction where it remains.

Therefore, I commend the Queensland Palaszczuk Labor Government for its commitment to remove this abhorrent law from the statute books via the Criminal Law Amendment Bill 2016.

It does so through the inclusion of clause 10, which would amend section 304 of the Queensland Criminal Code, the provision that establishes the partial defence to murder of provocation.

Specifically, I welcome the proposed insertion of new sub-section 304(3A):

“Further, sub-section (1) does not apply, other than in circumstances of an exceptional character, if the sudden provocation is based on an unwanted sexual advance to the person.”

Prima facie, the inclusion of this new sub-section substantively removes the partial defence of provocation for circumstances where the ‘provoking conduct’ was an unwanted, non-violent sexual advance.

In principle, then, the homosexual advance defence, or ‘gay panic’ defence, would be abolished in Queensland by the passage of this Bill.

However, I do have two concerns about the drafting of the amendments to section 304, and their potential operation.

First, by including the phrase ‘other than in circumstances of an exceptional character’, I am concerned that this leaves the door slightly ajar to at least some cases where the homosexual advance defence may be sought to be used.

I note that, for the purposes of new sub-section 3A, there is no restriction on what might constitute ‘circumstances of an exceptional character’ (with proposed new sub-section 6A merely providing that regard may be had to any history of violence, or of sexual conduct, between the offender and the victim).

This leaves room for judicial interpretation, and the possibility, albeit remote, that the homosexual advance defence may still be successfully raised.

For this reason, I suggest that the operation of the reforms to 304 be reviewed after a period of five years, to assess whether these amendments have operated as intended.

Recommendation 1: The operation of the proposed reforms to section 304 should be reviewed after five years, to assess how they have operated in practice, including how the term ‘circumstances of an exceptional character’ has been applied in cases where a defendant has sought to invoke what would be described as the homosexual advance defence.

The second concern I have about the proposed amendments is the inclusion of the definition of ‘unwanted sexual advance’ in new sub-section 9:

“In this section-

unwanted sexual advance, to a person, means a sexual advance that-

(a) is unwanted by the person; and

(b) if the sexual advance involves touching the person – involves only minor touching.

Examples of what may be minor touching depending on all the relevant circumstances-

patting, pinching, grabbing or brushing against the person, even if the touching is an offence against section 352(1)(a) or another provision of this Code or another Act.”

The attempt to provide clarity of what forms an unwanted sexual advance, as a means to prevent the successful use of the homosexual advance defence, is clearly welcome.

The reference to section 352(1)(a) is also useful because, as the Attorney-General noted in her second reading speech “the spectrum of conduct that falls within the offence of sexual assault is very broad”, and this should not automatically result in an increased ability of a murderer to seek to have their charge downgraded.

However, the creation of a definition of unwanted sexual advance creates the risk, and arguably the incentive, for the perpetrator of these types of offences to exaggerate the ‘touching’ that was involved in the unwanted sexual advance that preceded the murder.

Given the nature of these cases, there will necessarily be no ability for the victim to provide any evidence disputing this exaggeration.

It would obviously be disappointing if, in attempting to remove the homosexual advance defence, the Government introduces a provision that instead allows its continued use, in certain circumstances, with the defendant induced to increase their claims about the unwanted sexual advance by the deceased.

It is difficult to see how this particular risk can be completely excluded – other than by adopting the approach of some other states and territories (including Victoria, Western Australia and Tasmania) to abolish the partial defence of provocation entirely.

As with the definition of ‘circumstances of an exceptional character’ above, I suggest that the operation of these provisions generally, and the definition of ‘unwanted sexual advance’ specifically, be reviewed after five years, to determine whether there have been any unintended or unforeseen consequences of these amendments.

If there have been, then at that point it may be appropriate to consider abolishing the partial defence of provocation altogether, and replacing it with specific defences or partial defences for a limited range of scenarios (for example, in the context of family violence).

Recommendation 2: The operation of the proposed reforms to section 304 should be reviewed after five years, to assess how they have operated in practice, including how the definition of ‘unwanted sexual advance’ has been applied, and whether it has simply induced defendants to exaggerate their claims about the unwanted sexual advance by the deceased.

Thank you again for the opportunity to provide this submission regarding the Criminal Law Amendment Bill 2016, and specifically about clause 10, a provision that is intended to finally abolish the homosexual advance defence, or ‘gay panic’ defence, in Queensland.

As indicated above, I welcome these reforms in principle. The above two recommendations are offered in order to help ensure that the intention of the Bill is reflected in practice.

I can be contacted at the details provided with this submission, should the Committee have any questions about this submission, or require any additional information about the matters raised.

Sincerely

Alastair Lawrie

Yvette D'Ath

Queensland Attorney-General Yvette D’Ath, who introduced the Criminal Law Amendment Bill on 30 November last year.

Submission re Queensland Adoption and Other Legislation Amendment Bill 2016

The Queensland Labor Government has proposed legislation to finally allow adoption by same-sex couples in that state. The Adoption and Other Legislation Amendment Bill 2016 is currently being considered by a Parliamentary Committee, before being debated and voted upon later in 2016.

My submission to the Committee is included below. If you are reading this post on Wednesday 12 October, you can also watch the Committee’s public hearings about the Bill here.

**********

Research Director

Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee

Parliament House

George St

Brisbane QLD 4000

c/- hcdsdfvpc@parliament.qld.gov.au

Tuesday 4 October 2016

To the Committee

Submission re Queensland Adoption and Other Legislation Amendment Bill 2016

Thank you for the opportunity to provide a submission regarding the Adoption and Other Legislation Amendment Bill (‘the Bill’).

In this submission, I will focus on one aspect of this legislation – the proposed reform to allow same-sex couples to adopt children.

This reform is outlined in clause 13 of the Bill, which would amend section 76 of the Adoption Act 2009 to remove the requirement that a person expressing an interest in being assessed for suitability as an adoptive parent has a spouse, and that their spouse is not of the same gender as themself.

I strongly support this reform, for two reasons.

First, it removes unjustifiable discrimination against lesbian, gay, bisexual, transgender and intersex people.

The overwhelming majority of credible research shows that children raised in same-sex parented families are as healthy, and as happy, as those raised by mixed-sex couples.

As Deborah Dempsey found in the 2013 research paper “Same-sex parented families in Australia”[i]:

“[o]verall, research to date considerably challenges the point of view that same-sex parented families are harmful to children. Children in such families do as well emotionally, socially and educationally as their peers from heterosexual couple families”.

This conclusion was supported by research in the following year, by Dr Simon Crouch and others, that:

“children with same-sex attracted parents in Australia are being raised in a diverse range of family types. These children are faring well on most measures of child health and wellbeing, and demonstrate higher levels of family cohesion than population samples.”[ii]

These findings accord with reputable studies from overseas, with evidence consistently revealing that children from same-sex parented families experience the same levels of physical and mental health as their peers, if not better.

Based on this research, continuing to impose legal criteria that restricts prospective adoptive parents to those who have a spouse of a different gender, can be seen for what it really is – discrimination against LGBTI people that is both unnecessary, and completely without foundation.

It is time such discrimination was removed from the statute book, and I am grateful that the Bill will accomplish this.

Second, and even more importantly, removing this discrimination is in the best interests of children because it will help ensure an adopted child has the best possible adoptive parents.

As the research demonstrates, parenting ability has nothing whatsoever to do with sexual orientation, gender identity or intersex status.

Some cisgender heterosexual people make wonderful parents, while others do not. The same is undoubtedly true of members of the LGBTI community.

But to determine that only people who are in mixed-gender relationships may apply to become adoptive parents, while the LGBTI people who would make wonderful parents may not, carries with it the inherent risk that a child misses out on being adopted by more suitable parents solely because past Queensland Parliaments have determined that those people do not have the ‘right’ sexual orientation, gender identity or sex.

After all, it is only logical that, if the pool of prospective adoptive parents is reduced because of irrelevant criteria, the overall depth and quality of that pool is diminished.

Indeed, this argument was explicitly acknowledged in the second reading speech by Minister Fentiman, who noted that:

“[t]he bill recognises the need to provide fairness and equity and amends eligibility criteria to enable same-sex couples, single people and people undergoing fertility treatment to adopt a child. This will result in a broader and more flexible pool of people from which to select for assessment as suitable adoptive parents. Importantly, this change will mean more options will be available for matching a child to prospective adoptive parents who will best meet the child’s individual needs.”

On the basis of the above two reasons – that the Bill will remove unjust discrimination against LGBTI people, and that the proposed changes are in the best interests of children who are adopted – I urge the Committee to recommend that the Adoption and Other Legislation Amendment Bill 2016 be passed.

Ultimately, I call on the Queensland Parliament to support this reform as a matter of priority, thus recognising the diversity of modern families, and ensuring that they are treated equally under the law.

Thank you again for the opportunity to provide a submission on this important Bill. Should the Committee want any additional information, or wish to clarify any of the above, I can be contacted at the details provided below.

Sincerely

Alastair Lawrie

 

[Update 10 January 2017: Queensland Parliament passed legislation to allow for adoption by same-sex couples on Wednesday 2 November 2016, removing a major barrier to the equal treatment of LGBTI people, and relationships, under Queensland law. The Brisbane Times reported on this long-overdue law reform success here.]

 

Footnotes:

[i] Dempsey, D, “Same-sex parented families in Australia”, Child Family Community Australia, Research Paper No. 18, 2013.

[ii] Crouch, S, Waters, E McNair, R, Power, J, Davis, E, “Parent-reported measures of child health and wellbeing in same-sex parented families: a cross-sectional survey”, BMC Public Health, 21 June 2014.

Submission re Queensland Bill to (Finally) Equalise the Age of Consent

Updated 19 January 2017:

The Queensland Parliament voted to equalise the age of consent on Thursday 15 September 2016 (as reported by the Guardian Australia here: ‘Queensland votes to equalise age of consent for all sexual acts’).

This reform, which means the age of consent for anal sex is lowered to 16, to match the age of consent for other forms of sexual intercourse, removes a provision that had a disproportionate impact on young gay, bisexual and same-sex attracted men for a quarter of a century (myself included).

Queensland was the last jurisdiction in Australia to equalise its age of consent, coming years, and in most cases decades, after other states and territories.

Original Post:

The Queensland Government has introduced a Bill to, amongst other things, finally equalise the age of consent for anal intercourse.

This legislation – the Health and Other Legislation Amendment Bill 2016 – was referred to the Legal Affairs and Community Safety Committee for detailed consideration. The details of their inquiry can be found here.

The following is my submission:

Legal Affairs and Community Safety Committee

lacsc@parliament.qld.gov.au

Friday 22 July 2016

To the Committee

Submission re the Health and Other Legislation Amendment Bill 2016

Thank you for the opportunity to provide a submission about the Health and Other Legislation Amendment Bill 2016 (‘the Bill’).

In this submission, I will focus on Part 2 of the Bill, namely those provisions seeking to amend the Queensland Criminal Code.

Specifically, I write to support the long overdue equalisation of the age of consent for anal intercourse in Queensland.

I do so as a gay man who was born in Queensland in 1978, and who lived there until 1996, although now lives in Sydney.

The above dates mean that, for the first 12 years of my life, homosexual acts were criminalised I my home state – and I recall being vaguely aware of this fact, that ‘gay = criminal’, as I grew up in Central Queensland.

I am also old enough to remember, in slightly more detail, the historic passage of legislation in 1990 that decriminalised sex between men.

Indeed, it was only a couple of months later, when I first arrived at the religious boarding school in Brisbane that would be my home for the following five years, that I first started to realise that I was gay myself.

What I didn’t fully comprehend for another couple of years – but had certainly figured out by the time I turned 16 – was that the Goss Labor Government, and Queensland Parliament more generally, had left the important job of decriminalisation only half-done.

While they decriminalised sex between adult gay and bisexual men, they had also introduced a new form of discrimination – with the age of consent set at 18 for anal intercourse (which they referred to as ‘sodomy’), and 16 for everything else.

Admittedly, this new law technically applied to anal intercourse between anyone – meaning that 16 or 17 year old cisgender heterosexual people engaging in this form of sex were also criminalised – but it is clear they were not the real ‘targets’.

The Parliament knew it. The media knew it. The LGBTI community knew it. And this (then) teenage gay boy, even though he was still deeply entrenched in the closet, knew it too. This law was primarily concerned with prohibiting same-sex activity among teenage males.

For the years 1994 to 1996, while I was aged 16 and 17 and still living in Queensland, I was fully aware that the law treated me differently simply because of my sexual orientation.

For whatever reason – whether it was blatant homophobia, personal distaste or ‘squeamishness’ about anal intercourse, misguided beliefs about health risks or malicious stereotypes about homosexual ‘recruitment’ – my state’s lawmakers had decided to single me, and people like me, out as being lesser than our peers.

It was just one more reminder of the societal homophobia surrounding me, everywhere I looked, and one more factor that made it extremely difficult to come out to my family and friends.

I also believe it contributed to the lack of any LGBTI sexual health education during my time at high school (although obviously the religious nature of the school played a part too), something that was actually a health risk (especially given these were the peak years of deaths from AIDS-related illness in Australia, before the advent of life-saving treatments).

Of course, my story is by no means unique – there have literally been tens of thousands of young gay and bisexual men who have grown up in Queensland since the passage of the unequal age of consent in 1990. And, just like me, many of them have experienced adverse consequences due to these discriminatory laws.

Indeed, the explanatory memorandum of the Bill notes that “[s]ome in the community have identified the inconsistent age of consent for anal sex in the Criminal Code as a barrier to young people accessing safe sex education regarding anal intercourse, with gay and bisexual youth being denied peer acceptance and community support.”

It further observes that “[t]he panel [convened to consider this issue] noted that young people in same sex relationships may feel compelled to withhold information about their sexual history from their health practitioner for fear of the possible legal consequences, whether for themselves or their partner. This may have implications in terms of the young person’s access to appropriate medical treatment and also has the impact of stigmatising their relationship.”

Finally, “[t]he expert panel considered that using the term sodomy may stigmatise this form of intercourse, and homosexual relationships in particular.”

In my view, these are all compelling reasons to equalise the age of consent between anal intercourse and other forms of intercourse, and to update the language that is used in the Criminal Code to be more accurate and inclusive.

What is disappointing, even distressing, is that it has taken successive Queensland Governments more than 25 years to agree with this position and to finally take steps to remedy this injustice.

That’s a quarter of a century of prejudiced provisions, in the state’s criminal law, applying to young gay and bisexual men.

A quarter of a century sending a message to people that they are not equal simply because of who they are.

A quarter of a century limiting the sexual health education provided to young gay and bisexual mean.

A quarter of a century undermining the ability of tens of thousands of people, just like me, from accessing health services without fear of discriminatory treatment.

A quarter of a century of the Queensland Government and Parliament telling the LGBTI community, in yet another way, that is was not worthy of their respect.

And so, while I congratulate the decision by the Palaszczuk Labor Government to introduce this Bill to belatedly equalise the age of consent, and look forward to it being implemented later this year, I cannot help but take this moment to also reflect on, and condemn, the failure of previous Governments – from the Goss Labor Government, to the Borbidge Coalition, Beattie and Bligh Labor and Newman Liberal-National Governments – to remove these abhorrent provisions from the Queensland Criminal Code.

Their inaction on this issue has undeniably been to the detriment of generations of young gay and bisexual men, and it should not be forgotten.

Sincerely

Alastair Lawrie

Wayne Goss

Former Queensland Premier Wayne Goss, whose election victory in 1989 led to the decriminalisation of homosexuality 12 months later. But, for 16 and 17 year old gay and bisexual men, full decriminalisation has taken another quarter of a century.

Submission to QLRC Review of Expunging of Criminal Convictions for Historical Gay Sex Offences

Update: 17 January 2017

The Queensland Law Reform Commission’s report on ‘Expunging criminal convictions for historical gay sex offences’ was tabled in Queensland Parliament on Tuesday 29 November 2016. You can find a copy of the report, which was actually completed in August 2016, here.

After tabling the report, Attorney-General the Hon Yvette D’Ath expressed the Palaszczuk Labor Government’s commitment to progressing legislation to create an expungement scheme.

As reported by the Brisbane Times (‘Government outlines path to expunging historical gay convictions’), Ms D’Ath said:

“This is a chance for some closure for Queenslanders who continue to be hurt by the legacy of decades-old discrimination, wrongs inflicted by a past regime, from a very different Queensland from the modern state we enjoy today…

“As a parliament, we should apologise to those Queenslanders for these historic wrongs and for the hurt that followed them in the decades since.”

The recommendations included in the QLRC report, which is the starting point for legislation that is expected to be introduced in the first half of this year, appear reasonable.

The QLRC also notes, on page iii, that:

“At present, the age of consent is generally 16 years but is 18 years for sodomy. If the age of consent for sodomy were changed to 16 years prior to or in conjunction with the commencement of the proposed expungement legislation, applications for expungement in respect of eligible offences would be decided by reference to the age of consent of 16 years.”

This is obviously welcome (given it was included in my original submission – see below), especially now that the age of consent has in fact been equalised.

However, the report also recommends that expungement should apply with respect to:

“an offence under sections 208(1), 208(3), 209 or 211 of the Criminal Code, as in force prior to 19 January 1991 (the ‘date of legalisation’) except as constituted by heterosexual activity”.

When read together, there is a risk that these two recommendations will create the perverse situation that a gay or bisexual man, who was successfully prosecuted for male-male intercourse involving at least one party who was 16 or 17 years old will be able to have that conviction expunged where it occurred before 1991 – but will not be able to do so if it occurred between 1991 and the (long overdue) equalisation of the age of consent in 2016.

This is an issue that Attorney-General D’Ath specifically, and the Queensland Government generally, must address – because nobody should be subject to a criminal record in 2017 simply because of their sexual orientation, and that applies irrespective of whether the conduct occurred before ‘legalisation’, or ‘equalisation’.

 

Original post:

The Queensland Law Reform Commission (QLRC) is currently undertaking a review into the possible establishment of a scheme to expunge criminal convictions for historical gay sex convictions in that state. Details of the review, including a Consultation Paper, can be found here.

Submissions response to that paper are due on Tuesday 29 March 2016. The following is my submission:

The Secretary

Queensland Law Reform Commission

PO Box 13312

George St Post Shop QLD 4003

lawreform.commission@justice.qld.gov.au

Tuesday 22 March 2016

To whom it may concern,

Submission on Review of Expunging of Criminal Convictions for Historical Gay Sex Offences

Thank you for the opportunity to provide a submission in response to the Consultation Paper on this important subject.

In this submission I will attempt to answer the nine separate questions asked in the Consultation Paper[i].

I will also make two additional recommendations addressing issues that, while not specifically raised in the Paper, are closely tied to those that are and, I believe, must be addressed at the same time.

Overall, I welcome the interest of the Queensland Government in considering a scheme to allow LGBTI people generally, and gay and bisexual men in particular, to have unjust charges and convictions expunged from their criminal records.

Consensual same-sex sexual activity should never have been criminalised, and, in my opinion, it is doubly unjust to leave these charges and convictions in place, potentially to be held against people decades after they were originally penalised under these discriminatory laws.

**********

Joh

Former Queensland Premier, Joh Bjelke-Petersen.

First, to some context to explain why I am particularly interested in this review. I was born in Central Queensland in 1978, roughly halfway through the Joh Bjelke-Petersen era. I am therefore old enough to remember at least parts of the fierce debates around the potential decriminalisation of male homosexuality in the late 1980s[ii], as well as the extraordinary homophobia and hysteria that accompanied the emergence of the HIV/AIDS epidemic throughout that decade.

I also remember, vaguely, the passage of legislation decriminalising male homosexuality by the Goss Labor Government in November 1990[iii].

That achievement – the decriminalisation of same-sex sexual intercourse between adults[iv] – happened only a couple of months before I first realised that I was gay, and I am obviously thankful that this reform was in place before I reached adulthood.

However, I am not thankful that the Goss Government failed to accept the recommendation of the Criminal Justice Commission (CJC)[v] to introduce an equal age of consent for both homosexual and heterosexual sexual activity, but instead decided to set the age of consent at 16 for most sexual activities, but at 18 for ‘sodomy’ (that is, anal intercourse)[vi].

The principle set out by the CJC: “[i]t would accord with principles of sexual equality and anti-discrimination that the age of consent for males and females be the same irrespective of whether the sexual act is heterosexual or homosexual”[vii], was clearly sound.

By ignoring this principle, the Goss Government potentially exposed me to criminal prosecution, including a maximum penalty of 14 years imprisonment – because, during the time I was 16 and 17 years old (1994 to 1996), had I engaged in non-oral penetrative sex I could have been charged with, and convicted of, ‘unlawful sodomy’[viii].

While, prima facie, this offence applies to both heterosexual and homosexual conduct, and therefore some might describe it as non-discriminatory in nature, it simply cannot be denied that the impact of this unequal age of consent falls disproportionately on young same-sex attracted men.

Using my own situation, my heterosexual peers could engage in at least some types of non-oral penetrative sex without the fear of criminal prosecution, while I, obviously, could not. This disparity was unjust then, in mid-1990s Queensland. And it is extraordinarily unjust now.

It is almost unfathomable that, in 2016, the unequal age of consent for anal intercourse remains in place under Queensland law – rendering it the only place in Australia to maintain such a distinction. The Borbidge, Beattie, Bligh, Newman and (so far) Palaszczuk[ix] Governments have all failed to finish the job left only half-completed by the Goss Government more than 25 years ago.

Goss

Former Queensland Premier Wayne Goss, who ended the long rule of the National Party in 1989, and decriminalised homosexual activity between adults in 1990, but left the job half-complete by introducing an unequal age of consent for anal intercourse.

There are three main reasons why I am raising this issue here, as part of my submission to a review looking at expunging criminal convictions for historical gay sex offences:

  1. The objective of the proposed expungement scheme is to provide redress to people who have been unjustly punished because of discriminatory criminal laws, or the discriminatory application of criminal laws. In this context, we should not avoid the fact that, in 2016, there remain some criminal laws that, because of the type of conduct that is prohibited, continue to place an unjustifiable and discriminatory burden on young gay and bisexual men in particular.
  2. It is highly likely that there are men who have been criminalised due to this discriminatory age of consent in the 25 years since homosexual intercourse between adults was first legalised in Queensland but who, because most expungement schemes do not apply to conduct that remains subject to criminal sanction, would nevertheless not be allowed to have their criminal records expunged, and
  3. In my opinion, it makes no sense whatsoever to establish a framework to expunge ‘historical gay sex offences’ from criminal records while, at the same time, maintaining other criminal laws that mean there will likely be more people who are penalised as a result of the discriminatory application of those offences into the future.

For all of these reasons, I believe that the age of consent for anal intercourse, currently 18, must be made equal to the age of consent for other types of sexual activity, 16, either prior to or at the same time as the establishment of a scheme to expunge historical gay sex offences[x].

To not do so – leaving the current discriminatory age of consent in place – is not only unjust, it would also mean that, at some point in the future, when the age of consent is finally equalised, the expungement scheme will need to be amended to add all of those people unnecessarily penalised since the passage of the Criminal Code and Another Act Amendment Act 1990.

Recommendation 1: The Queensland Government should equalise the age of consent for anal intercourse, by making it 16 instead of 18, prior to or at the same time as any expungement scheme takes effect.

**********

The following section will address the nine questions asked in the QLRC Consultation Paper.

  1. Is there a need to change the law to introduce a new scheme for expungement?

Yes, I believe there is a clear need for a new legislative scheme to address this issue. The existing pardon scheme is not capable of providing appropriate redress to all of the people affected by these discriminatory criminal laws, or discriminatory application of criminal laws. Nor does it achieve the removal of convictions from a person’s history, which is an essential component of any scheme.

Spent convictions are also substantively different in nature from expungement, minimising the consequences of previous convictions (although even then not for all purposes, such as applying for some positions), rather than acknowledging the wrongness of, and attempting to remove, convictions that should never have been imposed in the first place.

For this reason, my preference would be to have a separate act for an expungements scheme. However, if it is included in existing spent convictions legislation, there should be clear delineation between the two concepts.

  1. Which criminal offences should be covered by an expungement scheme, and how should they be defined?

The criminalisation of same-sex activity extended beyond sexual activity to include prosecution for a range of other offences where they would not otherwise have been prosecuted if not for their sexual orientation.

For this reason, the expungement scheme should also extend beyond covering offences such as ‘buggery’ and ‘indecency between males’, to include offences such as soliciting, and it should not be limited solely to male same-sex activity (while noting that it will nevertheless predominantly be men who are affected).

It should also include attempting or conspiring to commit, or inciting, any of the eligible offences. And, as I made clear above, it should include people criminalised due to the unequal age of consent for anal intercourse.

In terms of how the offences are identified or defined, I suspect it would be difficult to list, from the outset, all relevant offences where people were prosecuted primarily because of who they were.

As a result, I prefer the combined option suggested in the Consultation Paper[xi], whereby known offences could be included in the legislation, other offences could be added by regulations where necessary, and a description test could be included to ensure that additional offences could be expunged where they are shown to be relevant in individual cases.

Finally, I am not opposed to consent, age and lawfulness being included as criteria for expungement – provided the age of consent for anal intercourse is lowered to 16, otherwise a range of people would be prevented from being able to seek redress because of the ongoing unjustified and inappropriate criminalisation of this activity.

  1. Should an exungement scheme also apply to charges for an offence or other legal processes related to a conviction?

I prefer the Victorian approach, which applies to the conviction, the charge to which the conviction relates and “any investigation or legal process associated with that charge or the conviction.”

This is important given the ever-expanding requirement to disclose charges and other matters (beyond simply convictions) in a range of circumstances, and the increased sharing of such information between Australians jurisdictions.

  1. Should an expungement scheme be confined to living persons?

No. I believe appropriate representatives (such as a spouse, parent, child or sibling) should be able to apply for expungement, as is the case in the ACT, NSW and Victoria. This is because the injustice of the discriminatory application of criminal laws does not change simply because the person charged or convicted has since died.

  1. What type of scheme should it be?

While it would be ideal to be able to adopt a scheme that operated automatically, expunging criminal records of individuals without first compelling them to effectively re-visit the injustice perpetrated on them by having to make an application for expungement, I do not believe this is possible, especially because the past criminalisation of same-sex activity included some offences that would remain criminal today (for example, where there was no consent).

As a result, I believe Queensland should follow the approach adopted by South Australia, the ACT, NSW and Victoria in establishing a ‘case-by-case’ scheme – noting that such a scheme must be adequately funded to limit any delay to people who have already been denied justice for too long.

In terms of deciding who the decision-maker should be, my preference would be for the establishment of an independent panel – although that may not be possible depending on the resources allocated to this scheme. In which case, an administrative scheme (overseen by the Director-General of the Department of Justice and Attorney-General) would ensure accessibility, flexibility, privacy and lower cost (and align with the approach adopted in Victoria, NSW and the ACT).

  1. When should a conviction be expunged under a scheme (the criteria for expungement)?

From my perspective, while the overall purpose of the scheme is to provide redress for people who would not have been charged but for the fact the activity was of a homosexual nature, the specific criteria that should be applied should be consent (where it is relevant), age and lawfulness (that is, whether the activity would constitute a criminal offence today).

However, as I have already made clear in this submission, in relation to age the scheme should also cover people who have been prosecuted as a result of the unequal and discriminatory age of consent that has operated in Queensland since the decriminalisation of adult same-sex sexual activity.

  1. What should be the effect of ‘expungement’ under a scheme (the consequences of a conviction becoming expunged)?

The governing principle should be to, as far as possible, restore the person’s position at law as if the charge or conviction had never been imposed. That would suggest that the Government should adopt more, rather than fewer, protections against disclosure.

I would support:

  • The person not being required to disclose information about the expunged conviction
  • A question about the person’s criminal history being taken not to refer to the expunged conviction
  • In applying an Act to a person, a reference to a conviction being taken not to refer to the expunged conviction
  • In applying an Act to a person, a reference to the person’s character not allowing or requiring anyone to take the expunged conviction into account and
  • Ensuring that the expunged conviction or its non-disclosure is not a proper ground for refusing to a person, or dismissing the person from, an appointment, post, status or privilege and that the person may reapply if such was refused solely on the basis of the conviction before it was expunged.[xii]

It also means that there should be criminal offences to disclose information about an expunged conviction, from records kept by or on behalf of a public authority, or by a person with access to official records, and to fraudulently or dishonestly obtain information about an expunged conviction from records kept by or on behalf of a public authority.[xiii]

Although the exceptions nominated in the Consultation Paper – such as being a disclosure to or with the consent of the person, or to inform a public authority holding information about convictions that the conviction itself is expunged – also seem reasonable.[xiv]

In terms of whether official records should be annotated or destroyed, I am drawn to the Victorian approach, where official records of convictions are annotated to record the fact that the conviction is expunged, and where entries about an expunged conviction in electronic databases or extracts of official records are to be removed, made incapable of being found, or de-identified. This is because undertaking these actions is likely to assist in preventing the further disclosure of these records.

Finally, I do not take a position on whether an expunged conviction should be able to be revived. While in theory such a safeguard appears necessary, based on the experience in the UK, and in Australian states and territories that have adopted expungement schemes to date, it is unlikely that large numbers of people will have their records expunged, thereby reducing the risk of an inappropriate expungement that ultimately requires reversal.

  1. What procedural features should an expungement scheme have, and how should it operate?

Again, I am drawn largely to the Victorian approach (although most features are shared across schemes). This would include allowing the person convicted of the offences to apply, or the guardian of the convicted person to apply if the convicted person is unable to apply because of a disability.

It also includes the application being required to be in writing, in an approved form, incorporating:

  • The person’s name, date of birth and address at the time of the application and at the time of the conviction (where known)
  • When and where the person was convicted and details of the offence and
  • Authorising a police record check and giving consent to the disclosure to the decision-maker of official records created by the courts, police or office of public prosecutions relating to the conviction,

but not requiring the person to include the transcript or sentencing remarks (as mandated in South Australia)[xv].

I also support the person having the opportunity to include supporting information or statements, and evidence of the other person(s) involved, as well as being able to withdraw an application, and being given an opportunity to provide further information before an application, which is proposed to be refused, is finally decided (as required in NSW and the ACT).[xvi]

In terms of the decision-making process itself, while I support the decision-maker being able to request or require further information from the applicant, or from another person or body, I do not believe the decision-maker must have regard to any available record of the investigation or proceedings. I also support the approach in NSW, Victoria and UK, where an oral hearing is not to be held.[xvii]

Given the need to provide justice to people who have already been denied justice for too long, I support the approach in Victoria, requiring an application to be determined “as promptly as possible”. Procedural fairness would also dictate that an applicant be provided with written notice of the decision, including reasons. In order to ensure that the records are actually expunged, the notice of the decision should also be given to the ‘data controller’ for official records held by the courts, police and the office of public prosecutions.

Finally, in terms of review processes, I support the right to re-apply, following an earlier refusal, where additional supporting material becomes available. People who have their application refused should also be able to seek review of the decision by the Queensland Civil and Administrative Tribunal (which would be consistent with the ACT, NSW and Victoria), although I do not support the right of the ‘data controller’ to seek review of a decision to approve an application.

  1. Are there any other matters that should be considered?

Yes. As discussed in the Consultation Paper[xviii], I support consequential amendments to the Queensland Anti-Discrimination Act 1991 to ensure that people cannot be discriminated against on the basis of charges or convictions that have since been expunged.

I also support amendments to the Working with Children (Risk Management and Screening) Act 2000 – and any other scheme that considers historic offences for registration or eligibility – to guarantee that expunged charges and convictions are not able to be accessed or considered.

Finally, in terms of resources, there are two distinct needs. The first is for an education campaign to raise awareness amongst people who may have been affected by past criminalisation, and to provide information about their options under the scheme. Such a campaign should be funded by the Government and delivered in partnership with Queensland LGBTI community organisations.

The second would be the direct provision of legal advice and assistance to people who wish to pursue their rights under the scheme, as well as access to counselling and other related services where relevant.

**********

There is one final issue that, although not considered in detail in the Consultation Paper, is, in my view at least, intrinsically linked to a scheme designed to provide redress to people who have experienced injustice because of the criminalisation of same-sex sexual activity.

It is my sincere belief that, at the same time as the Queensland Parliament (hopefully) passes legislation to establish an expungement scheme, it should also offer an apology to all those who have suffered adverse consequences as a result of this unjustified and inappropriate criminalisation.

As I have made clear earlier in this submission, I believe this apology should also be extended to people who have been criminalised as a result of the unequal age of consent for anal intercourse that has been in operation since homosexual sexual activity between adults was first legalised.

While symbolic, an apology to all of these people would be an important step not just towards healing the wounds of the past, but also towards demonstrating the commitment of the Queensland Parliament to ensure that similar injustices are not perpetrated again in the future.

Recommendation 2: That, at the same time as it passes legislation to establish an expungement scheme, the Queensland Parliament should offer an apology to all those who were subject to criminalisation for same-sex sexual activity in the past, including those who have been criminalised because of the unequal age of consent for anal intercourse.

**********

Thank you for taking this submission into account as part of this important review. If you would like more information, or to clarify any of the above, please do not hesitate to contact me at the details provided.

Sincerely

Alastair Lawrie

[i] QLRC, Consultation Paper: Review of expunging of criminal convictions for historical gay sex offences, p23-40.

[ii] I was unusually interested in politics and current affairs as a child – some things never change.

[iii] Criminal Code and Another Act Amendment Act 1990.

[iv] By repealing then sections 208 (Unnatural offences), 209 (Attempt to commit unnatural offences) and 211 (Indecent practices between males) from the Queensland Criminal Code.

[v] Criminal Justice Commission, Reforms in laws relating to homosexuality: An information paper, 1990.

[vi] Section 208 of the reformed Criminal Code still creates the offence of “Unlawful sodomy: A person who does, or attempts to do, any of the following commits a crime – (a) sodomises a person under 18 years; (b) permits a male person under 18 years to sodomise him or her… Maximum penalty – 14 years imprisonment.”

[vii] Op cit, page 60.

[viii] Obviously, this law would also have applied had I been 18 or 19 and had a partner who was a year or two younger than I was – something that is not uncommon, and a situation that would not attract criminal prosecution if it involved vaginal intercourse.

[ix] Although I understand that the Palaszczuk Labor Government is currently seeking advice on this issue, from an expert panel including ‘health experts’: Brisbane Times, Queensland Government considers lowering age of anal sex consent to 16, August 20 2015.

[x] Irrespective of the current review by the Palaszczuk Government (see above), I believe this is an issue that the QLRC should also consider in detail given it is inherently linked to its consideration of an expungement scheme.

[xi] QLRC Consultation Paper, Option 4, page 26.

[xii] All options from QLRC Consultation Paper, ibid, pages 33-34.

[xiii] Ibid, pages 34-35

[xiv] Ibid, page 35.

[xv] Ibid, page 36.

[xvi] Ibid, page 37.

[xvii] Ibid.

[xviii] Ibid, page 39.

Submission to Review of the Queensland Adoption Act 2009

Update 16 January 2017:

Queensland Parliament passed legislation to allow for adoption by same-sex couples on Wednesday 2 November 2016, removing a major barrier to the equal treatment of LGBTI people, and relationships, under Queensland law.

The Brisbane Times reported on this long-overdue law reform success here.

Update 11 August 2016:

On Saturday 6 August, the Queensland Government announced that, in response to this review, it will be proposing legislation to ensure that single people, and same-sex couples, will be able to adopt legally in Queensland.

The consultation report can be found here.

This is obviously wonderful news for rainbow families – both existing and prospective – and for LGBTI Queenslanders generally. I am thankful to have played a small part through this consultation. Please see my own submission to this review below.

Original Post:

The Queensland Government is currently undertaking a review of the Adoption Act 2009.

This is an important opportunity for the LGBTI community to let the Government know that the current discriminatory provisions contained in the Act – which prevent same-sex couples from together adopting children, and which also prevent a same-sex partner from adopting their partner’s child – must be removed as a matter of priority.

Full details of the consultation can be found here. Public submissions close 5pm Friday 11 March 2016. The following is my submission:

Department of Communities, Child Safety and Disability Services

Child and Family Legislative Review

PO Box 806

Brisbane QLD 4001

adoptionactreview@communities.qld.gov.au

Sunday 6 March 2016

To whom it may concern

Submission to Review of the Queensland Adoption Act 2009

Thank you for the opportunity to provide this submission as part of the five-year review of the operation of the Queensland Adoption Act 2009.

In this submission, I will primarily focus on one of the nine questions posed by the Discussion Paper, namely:

  1. Do you consider the eligibility criteria provisions of the Act to be fair and continue to meet the needs of children who require adoptive families?[i]

In my view, the answer to this question is unequivocally no.

As stated in the Discussion Paper, the Adoption Act 2009 currently requires that “To be eligible to express an interest [in adopting] a range of criteria must be met: [including]

The person has a spouse who:

  • is also eligible
  • is not the same gender as the person
  • has been the person’s spouse for at least two years”[ii] [emphasis added].

This is clearly neither fair, nor is it in the best interests of the child(ren).

To begin, including a requirement that prospective adoptive parents must be in mixed-gender relationships, rather than in a relationship with someone of the same gender, is unfair in its discriminatory approach toward the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, excluding the majority of LGBTI people from even applying to adopt children in Queensland.

This discrimination is not supported by evidence showing that children are ‘better off’ being adopted exclusively by cisgender heterosexual couples.

In fact, the overwhelming majority of credible research shows that children raised in same-sex parented families are as healthy, and as happy, as those raised by mixed-sex couples.

As Deborah Dempsey found in the 2013 research paper “Same-sex parented families in Australia”[iii]:

“[o]verall, research to date considerably challenges the point of view that same-sex parented families are harmful to children. Children in such families do as well emotionally, socially and educationally as their peers from heterosexual couple families” [emphasis added].

This conclusion was supported by research in the following year, by Dr Simon Crouch and others, that:

“children with same-sex attracted parents in Australia are being raised in a diverse range of family types. These children are faring well on most measures of child health and wellbeing, and demonstrate higher levels of family cohesion than population samples.”[iv]

These findings accord with reputable studies from overseas, with evidence consistently revealing that children from same-sex parented families experience the same levels of physical and mental health as their peers, if not better.

The criteria which restricts prospective adoptive parents to those who have a spouse of a different gender should be removed from Queensland’s Adoption Act 2009 as it unnecessarily, and completely without foundation, discriminates against members of the LGBTI community.

Even more importantly, it should be removed because it potentially denies an adopted child from having the best possible adoptive parents.

As the research referred to above demonstrates, parenting ability has nothing whatsoever to do with sexual orientation, gender identity or intersex status.

Some cisgender heterosexual people make wonderful parents, while others do not. The same is undoubtedly true of members of the LGBTI community.

But to determine that only people who are in mixed-gender relationships may apply to become adoptive parents, while the LGBTI people who would make wonderful parents may not, carries with it the inherent risk that a child misses out on being adopted by more suitable parents solely because the Queensland Parliament has determined that those people do not have the ‘right’ sexual orientation, gender identity or intersex status.

After all, it is only logical that, if the pool of prospective adoptive parents is reduced because of irrelevant criteria, the overall depth and quality of that pool is diminished.

If adoption laws are to be based on the best interests of the child, and nearly all people agree that should be the case, then this is another compelling reason to remove eligibility criteria based on the gender(s) of the prospective adoptive parents.

These factors – the discriminatory impact of the Queensland Adoption Act 2009 on LGBTI people, and the failure to take into account the best interests of the child – are both exacerbated in the current denial of the ability of people who are in same-gender relationships to apply to be the adoptive parents of their partner’s child (ie step-parent adoption)[v].

In this situation, and based on the other eligibility criteria contained in the Act, the applicant, their partner and the child(ren) involved would have been living together for at least three years. That’s three years of sharing a home and living together, for all intents and purposes, as a family.

What possible justification could there be to say that an LGBTI step-parent should be denied the ability to adopt their partner’s child, where they would otherwise be able to if they were cisgender and heterosexual?

In my view, and I would hope the view of the majority of the Queensland Parliament, there can be no justification for discriminating in this way, and denying these families – because they are families, irrespective of what the current law says – the legal protections that they require, and that they deserve.

Introducing adoption equality – by removing restrictions on the ability of LGBTI people to adopt, both ‘unknown’ children and their partner’s child(ren) – would also bring Queensland laws into line with the majority of other Australian states and territories, thereby aiding national consistency in this important area of family law and legal recognition[vi].

As the Discussion Paper notes[vii], NSW, Western Australia, Tasmania and the ACT all have existing adoption equality laws. In the time since the Discussion Paper was released, Victoria has also amended its laws to ensure that LGBTI people have the ability to adopt children[viii].

With South Australia currently reviewing its adoption laws, and the realistic prospect that adoption equality will be introduced there in the near future, that would leave the Northern Territory as the only other jurisdiction in Australia continuing to discriminate against adoptive parents on the basis of their sexual orientation, gender identity or intersex status.

By passing amendments to the Adoption Act 2009 to remove discrimination against LGBTI people, Queensland Parliament would therefore be helping to recognise the 21st century reality – that rainbow families exist, and that lesbian, gay, bisexual, transgender and intersex people can be just as good parents as cisgender heterosexual people.

Thank you for taking this submission into account as part of the five-year review. If you would like more information, or to clarify any of the above, please do not hesitate to contact me at the details provided.

Sincerely

Alastair Lawrie

Shannon Fentiman

Queensland Minister for Communities, Women and Youth, and Child Safety, the Hon Shannon Fentiman MP.

[i] Discussion paper: Public consultation for the review of the operation of the Adoption Act 2009, page 9.

[ii] Ibid page 8.

[iii] Dempsey, D, “Same-sex parented families in Australia”, Child Family Community Australia, Research Paper No. 18, 2013.

[iv] Crouch, S, Waters, E McNair, R, Power, J, Davis, E, “Parent-reported measures of child health and wellbeing in same-sex parented families: a cross-sectional survey”, BMC Public Health, 21 June 2014.

[v] The Discussion Paper states on page 12 that: “A person may apply to the Chief Executive to arrange an adoption of a stated child if: the person’s spouse is not the same gender as the person.”

[vi] Which is relevant to question 7 on page 16 of the Discussion Paper: “Are there approaches in other jurisdictions that Queensland could consider?”

[vii] Discussion Paper, Appendix: Adoption in Australia – Inter-jurisdictional analysis of legislative provisions.

[viii] ABC News, “Same-Sex Adoptions Laws Pass Victorian Parliament” December 9 2015.

Submission to Inquiry into Queensland Civil Partnerships Bill

UPDATE 6 January 2016:

 

The Legal Affairs and Community Safety Committee tabled its report in Queensland Parliament on 17 November 2015[i].

 

The cross-party Committee failed to support the Bill: “[i]n this instance the committee was not able to reach a majority decision on a motion to recommend that the Bill be passed.”[ii]

 

Liberal-National MPs on the Committee opposed the reintroduction of civil partnerships, and optional ceremonies, to such an extent that they did not even allow submissions and relevant evidence to be included as part of the main report – this information was only included as part of the Government Members Statement of Reservation.

 

It was therefore only because of ALP Committee Members Mark Furner, Jim Madden and Mark Ryan that we know 27 of the 29 submissions made were in favour of reintroducing civil partnerships.[iii]

 

Government Members also reported that, as at 4 November 2015, 6,856 mixed-sex couples had taken advantage of Queensland civil partnership/registered relationship schemes, compared to only 1,227 same-sex couples (thus demonstrating the need to retain alternative relationship recognition options even after marriage equality is finally legislated federally).

 

I am also thankful that Government MPs saw fit to include two quotes from my personal submission:

 

  • “The decision to abolish civil partnership ceremonies, and the haste with which it was achieved, was an unjustified, divisive and mean-spirited act – and I commend the current Queensland Government for taking steps to undo the damage that was done three years ago” on page 12, and

 

  • “In my view, the term ‘civil partnership’ is a much more accurate description of the relationship which exists within couples who wish to have their partnership formally recognised under state law, whereas, to me, ‘registered relationship’ is a more sterile term which merely describes the process of recognition rather than the relationship itself” on page 19 of the report.

 

The Bill was then debated in Queensland’s Legislative Assembly on Thursday 3 December 2015. It was supported by all Labor MPs as a piece of Government legislation.

 

Somewhat surprisingly, given the behaviour of their MPs on the Legal Affairs and Community Safety Committee, the LNP offered a conscience vote to its MPs and half chose to exercise their vote to support the Bill, meaning that it passed by a large majority: 64 votes in favour, compared to only 22 votes against.

 

Once again, I am grateful that Government MPs quoted my submission – both the Member for Brisbane Central, Ms Grace Grace, and the Member for Ipswich West, Mr Jim Madden, used the first quote highlighted above.

 

The Relationships (Civil Partnerships) and Other Acts Amendment Act 2015 received Royal Assent on 17 December 2015, and its provisions, restoring civil partnerships and once again allowing couples to hold a formal civil partnership ceremony if they so choose, will commence sometime early this year.

 

Thankfully, one sad, recent chapter of Queensland’s LGBTI history is now closed. Although there remain a variety of areas which still require action by the Palaszczuk Government, including (among others):

 

  • Equalising the age of consent for anal intercourse
  • Introducing adoption equality
  • Abolishing the homosexual advance or ‘gay panic’ defence and
  • Expunging historical homosexual convictions.

 

ORIGINAL POST:

Submissions to the Parliamentary Inquiry into Queensland’s Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015 close tomorrow (Monday 19 October 2015). Full details on the inquiry, including how to submit, can be found here: <https://www.parliament.qld.gov.au/work-of-committees/committees/LACSC/inquiries/current-inquiries/07-RelationshipsCPOAAB15 Here’s my own submission:

Research Director

Legal Affairs and Community Safety Committee

Parliament House

George St

Brisbane QLD 4000

lacsc@parliament.qld.gov.au

Sunday 18 October 2015

Dear Committee Members

INQUIRY INTO THE RELATIONSHIPS (CIVIL PARTNERSHIPS) AND OTHER ACTS AMENDMENT BILL 2015

Thank you for the opportunity to provide a submission to this inquiry that is considering the details of the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015.

I write in support of the Bill, for two main reasons:

  1. The term ‘civil partnerships’ is strongly preferred when compared to the term ‘registered relationships’.
  2. The Act restores the right of couples to enter into a civil partnership by holding a civil partnership ceremony if they so choose.

The first point may seem comparatively minor, considering it relates only to nomenclature, but terminology is important, particularly when it describes something as personal as the relationship between two members of a couple.

In my view, the term ‘civil partnership’ is a much more accurate description of the relationship which exists within couples who wish to have their partnership formally recognised under state law, whereas, to me, ‘registered relationship’ is a more sterile term which merely describes the process of recognition rather than the relationship itself.

It is also my view that the term civil partnership is more likely to be understood, and accepted, by members across the community, whereas the term registered relationship is less likely to attract widespread social acceptance from others.

The second reason why I support the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015 is more substantive, and that is because it restores the ability of couples to enter into a civil partnership by holding a civil partnership ceremony.

Importantly, it is not compulsory – couples that wish to pursue this option will be able to do so, while other couples will be able to enter into a civil partnership without holding a ceremony.

I wholeheartedly agree with the description of this reform contained in the letter from the Director-General of the Department of Justice and Attorney-General, Mr David Mackie, to the Committee dated 1 October 2015:

“This is being done to support the dignity and equality of each and every Queenslander by giving them the opportunity to formally declare their commitment to their significant.”

In fact, it is difficult to conceive any rational justification to oppose these provisions – after all, who would want to actively deny their fellow citizens the choice to hold a civil partnership ceremony, if that is what the couple desired?

And yet, that is exactly what the majority of Queensland Members of Parliament did in June 2012, voting to strip away the ability of these couples to hold a formal ceremony. Not only that, the removal of these rights was such a high priority for the (then) newly-elected Newman Liberal National Government that is was enacted within three months of its landslide victory.

The decision to abolish civil partnership ceremonies, and the haste with which it was achieved, was an unjustified, divisive and mean-spirited act – and I commend the current Queensland Government for taking steps to undo the damage that was done three years ago.

I also commend the Palaszczuk Labor Government because, in introducing the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015, it is doing what it can within the powers of a state government to recognise the diversity of relationships that exist in contemporary society.

With the High Court finding in December 2013 that only the Commonwealth Parliament has the power to legislate for marriage equality, but the majority of Members and Senators of that Parliament showing their continued unwillingness to recognise the full equality of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians, it is pleasing to see a state government providing the opportunity for all couples, including LGBTI couples, to enter into civil partnerships – and offering the choice to hold a civil partnership ceremony, too.

Even after marriage equality is finally enacted by our recalcitrant federal parliamentarians, the ability to enter into a civil partnership under state law will remain an important option for those couples who do not wish to marry for whatever reason (and that includes both cisgender heterosexual couples, and LGBTI couples).

For all of these reasons, I support the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015, and urge Committee Members, and indeed all Queensland MPs, to ensure it is passed by the Parliament as a matter of priority.

Finally, I note that the renaming of civil partnerships, including restoring the right of couples to enter into a civil partnership by holding a civil partnership ceremony if they so choose, is just one of several important measures which are required to ensure LGBTI people are finally treated equally under Queensland law.

Other necessary reforms include abolition of the gay panic defence, the introduction of adoption equality, the equalisation of the age of consent for anal intercourse and the expungement of historical convictions for gay sex. I look forward to these issues, and more, being addressed by the Queensland Parliament in the near future.

Thank you in advance for considering this submission. Should the Committee require additional information, or wish to clarify any of the information above, I can be contacted at the details below.

Sincerely

Alastair Lawrie

Queensland Attorney-General Yvette D'Ath introduced the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015 in September.

Queensland Attorney-General Yvette D’Ath introduced the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015 in September.

[i] Final Report: https://www.parliament.qld.gov.au/documents/committees/LACSC/2015/07-RelationshipsCPOAAB15/07-rpt-014-17Nov2015.pdf

[ii] Ibid, p4.

[iii] Ibid, p12.