2016: Annus Homophobicus

Posted on December 26, 2016 by Alastair Lawrie

In November 1992, the Queen of England (and, unfortunately, still the Queen of Australia too) gave a speech in which she described the previous 12 months as her ‘annus horribilis’.

To be fair, it had been a rough year for Ms Windsor, with the separation of her eldest son from his wife, the divorce of her only daughter from her husband, frequent tabloid scandals (hello toe-sucking!) and even a fire in one of her (many) houses[i].

But, as bad as Elizabeth II’s year was back then, it’s frankly got nothing on how depressing, and frustrating, 2016 has been for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.

So, as the year draws to a close, and we look back on the (too few) highs and (far too many) lows, it feels apt to declare the past 12 months to be our very own ‘annus homophobicus’.

It started in January with the launch of a ferocious, and well co-ordinated, attack on the Safe Schools program by the Australian Christian Lobby, The Australian newspaper and extremists in the right-wing of the Liberal-National Government.

And, even after Prime Minister Malcolm Turnbull ‘gutted’ the program in early March, the campaign against what is a vital anti-bullying program designed to help LGBTI students has continued, as unyielding as it is lacking in compassion.

The year ended with the tragic death of 13-year-old Brisbane high school student, Tyrone Unsworth, in late November. Indigenous and gay, Tyrone had suffered relentless bullying because of his sexual orientation, until he ultimately took his own life.

A death that, understandably, shook many members of our community to the core, it was particularly hard for LGBTI Aboriginal and Torres Strait Islander people.[ii] It was a tragedy that demonstrated the very need for a program that homophobic bigots had spent the best part of a year trying to dismantle.

In between, 2016 was dominated by Turnbull’s proposed plebiscite on marriage equality – a policy that was completely unnecessary, fundamentally wasteful and, if held, would inevitably be harmful for countless young and vulnerable members of the LGBTI community, including the children of rainbow families.

It took the collective efforts of a variety of LGBTI groups, alongside the work of many individual activists, over several months, to finally defeat the planned plebiscite in early November. But that sustained campaign, against a proposal that had been put forward simply to delay or defeat rather than achieve equality, left a large number of people almost completely drained (myself included).

The past 12 months has also witnessed a rise in homophobic and transphobic hate-speech. It seems that anti-LGBTI rhetoric is both more common, and more ‘acceptable’, in Australia now than at any point over the past 10 to 15 years.

And it certainly does not help that the frequent abuse of LGBTI people coming from inside the Government, by the likes of Cory Bernardi and George Christensen, has gone without any obvious punishment from an allegedly-moderate Prime Minister too scared to stand up to his more-conservative colleagues.

Even worse than hate-speech, 2016 has seen plenty of horrific hate-based actions, both here and around the world.

This includes the almost unspeakable tragedy in Orlando on June 12^th, with the mass murder of 49 people, and wounding of 53 others, at Pulse. With the popular gay nightclub holding a Latin night, most of the victims were young and Latinx. Six months later, it remains impossible not to cry when reading or watching tributes[iii] to the casualties of this terror attack.

Tributes to victims outside the Pulse nightclub in Orlando, Florida.

Acts of homophobic and transphobic violence were not limited to the United States, however. In Australia, too, there were countless assaults on LGBTI people.

The one that hit closest to home – both literally[iv] and figuratively – was the young Sydney man who was ‘gay-bashed’ twice in one night[v], the second time by a supposed ‘good Samaritan’ who had initially helped him after the first attack, only to assault the victim himself after learning he was gay.

This was a crime based on homophobia that could happen to anyone, anywhere, anytime, including my fiancé Steven and me.

**********

The net effect of these events, alongside other shocking outcomes of the past year (including Brexit and the election of Donald Trump), has been sufficient to undermine the belief that progress is somehow inevitable, that the future will always be better than the past.

But, as LGBTI Australians, we don’t need the fear-fuelled success of a xenophobic campaign against immigrants in the UK, or of a sexist and racist tyrant-in-training in the US, to remind us that political change is not inherently positive.

As many of you would know, the past few years have seen a number of areas where progress on LGBTI policy and law reform hasn’t just stalled, but been actively wound back.

One of the first acts of the Campbell Newman-led Liberal-National Queensland Government in 2012 was to abolish ceremonies as part of the recently-passed civil partnership scheme in that state[vi].

In Victoria, the Baillieu Coalition Government repealed the ‘inherent requirement’ test from that state’s Equal Opportunity Act – which had required religious employers to demonstrate that discrimination against LGBT employees was an essential part of the role – before it had even commenced operation in 2011[vii].

The Tasmanian Liberal Government not only made discrimination by religious schools easier in 2015 (thereby undermining what has been the nation’s best anti-discrimination scheme), it is currently committed to reducing protections against vilification, including those enjoyed by LGBTI Tasmanians.

And we shouldn’t forget the decision by Prime Minister Turnbull to discontinue funding for the Safe Schools program (with Commonwealth money to cease from 2017), an initiative that his predecessor, Tony Abbott, had actually implemented less than three years earlier.

It is clear then, that progress on LGBTI issue is not inevitable. And it is almost enough to challenge the wisdom of one of Martin Luther King, Jr’s many note-worthy quotes, namely that “The arc of the moral universe is long, but it bends toward justice.”

Almost, but not quite.

As painful as the past 12 months have been for many, especially for members of Australia’s LGBTI communities, we nevertheless must see these events in their historical context, and recognise that – at least on a (much) longer time-scale – overall, things are still headed in a positive direction. And that remains the case even if there are twists and turns, even significant bumps, along the way.

But the most important lesson to remember is that, while the arc may ‘bend toward justice’, it only does so because good people come together to take action to make change happen.

Just as US cultural anthropologist Margaret Mead famously observed: “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”

One of the best examples of this maxim actually comes from one of the major LGBTI victories of 2016 – the long overdue equalisation of the age of consent for male homosexuality in Queensland.

While this was discriminatory legislation that affected many, its repeal was only a priority for a dedicated few[viii], including long-time LGBTI activist John Frame[ix] among others.

Through painstaking, and often thankless, campaigning over years and eventually decades, they chipped away at an unjust law until it was finally amended in September this year, almost 25 years since it was first introduced.

There were other wins this year too. The Palaszczuk Labor Government in Queensland also passed legislation to allow adoption by same-sex couples, while the Weatherill Labor Government in South Australia ended 2016 with a flurry of pro-LGBTI law reform, including relationship recognition, same-sex adoption and trans birth certificate changes[x].

And of course, there was the LGBTI community’s success in defeating the marriage equality plebiscite, a victory that was by no means guaranteed at this point last year[xi].

All of which is to show that, despite the increasingly toxic political environment that we appear to be operating in, and the significant losses cited above, positive change is still possible – if we keep our sights on the country, and world, that we want to create, and work towards it patiently, gradually, relentlessly.

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For my part, as I look ahead to 2017, I will be redoubling my efforts to improve Australia’s incomplete, inconsistent and in many cases inadequate system of LGBTI anti-discrimination and anti-vilification laws.

I know others will concentrate their energies on (finally) achieving marriage equality, as well as a myriad of other reforms, from ending the involuntary sterilisation of intersex infants, to further trans birth certificate changes, ending the inhumane detention of LGBTI refugees and reinvigorating the Safe Schools program.

So, let’s end 2016 by reflecting, relaxing and hopefully recuperating, so that when the new year rolls around we are ready to dust ourselves off, fight once more and bend that arc towards a more just country for LGBTI Australians.

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I have one final favour to ask. Could you please take 5-15 minutes to complete this short survey about your experiences of homophobic, biphobic, transphobic and intersexphobic discrimination, over the past 12 months, and previously?

The results of this research will be used to advocate for better protections against discrimination for LGBTI people across Australia, as well as to campaign for the introduction of LGBTI anti-vilification laws where they do not currently exist.

Please TAKE THE SURVEY NOW.

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If this post has raised any issues for you, you can contact:

QLife, Australia’s national telephone and web counselling and referral service for LGBTI people. Freecall: 1800 184 527, Webchat: qlife.org.au (3pm-midnight every day)
Lifeline: 13 11 14, lifeline.org.au

Footnotes:

[i] See The Guardian “How the Royal Family Bounced Back from its Annus Horribilis” 24 May 2012.

[ii] If you have a chance, please read Dameyon Bonson’s excellent op-ed “I am Indigenous. I am Gay. Unlike Tyrone Unsworth, I Survived” in The Guardian Australia, 28 November 2016.

[iii] For example, see Anderson Cooper’s emotional tribute on CNN in the days after the tragedy here.

[iv] The victim lived in our apartment complex, with the second attack happening just 50 meters from our building.

[v] The Daily Telegraph “Gay man bashed twice in Waterloo: I’ve never been so scared in my life, and thought I would die” 23 February 2016.

[vi] Thankfully, these ceremonies were reintroduced by the subsequently (and surprisingly) elected Palaszczuk Government.

[vii] The current Victorian Liberal-National Opposition, led by Matthew Guy, defeated Andrews Labor Government legislation to reinsert this test in November 2016.

[viii] With many focusing on more ‘popular’ issues like marriage equality.

[ix] See samesame.com.au “It’s time to update Queensland’s sex laws” 23 August 2015.

[x] For more on LGBTI successes of the past 12 months, see Lane Sainty’s summary in Buzzfeed “13 Times Australia’s LGBTI Community Had a Win in 2016” 16 December 2016.

[xi] For more, see Pride, Pressure & Perseverance.

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

Posted on July 29, 2016 by Alastair Lawrie

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

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

Posted on March 22, 2016 by Alastair Lawrie

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.

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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.

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:

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.
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
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.

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

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.

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.

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.

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.

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).

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.

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.

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.

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.

Letter to NSW Premier Mike Baird re LGBTI Equality and Conscience Votes

Posted on May 25, 2014 by Alastair Lawrie

In Question Time on Wednesday 7 May 2014, the Independent Member for Sydney, Alex Greenwich MP, asked the new Liberal-National Premier, the Hon Mike Baird MP, about his, and his Government’s, support for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community of NSW.

I have reproduced the text of both the question and answer below, along with highlighting a couple of points of particular interest:

LESBIAN, GAY, BISEXUAL, TRANSGENDER AND INTERSEX COMMUNITY SUPPORT

Mr ALEX GREENWICH: My question is addressed to the Premier. Will he build on the support of previous Premiers for the lesbian, gay, bisexual, transgender and intersex communities, including supporting ACON, the Sydney Gay and Lesbian Mardi Gras, Twenty10 and the Gender Centre, and allowing at least a free vote on lesbian, gay, bisexual, transgender and intersex-related legislation?

Mr MIKE BAIRD: I thank the member for his sensible question and for the work he does in his community. One of the hallmarks of my Government will be respect for all people and all communities. My Government will not judge people on the basis of race, religion or sexuality. My Government will judge each individual by how he or she behaves and what he or she contributes to the community and those around them. Discrimination against any individual or group on the basis of race, religion or sexuality has no place in New South Wales. Members of the lesbian, gay, bisexual, transgender and intersex community can continue to have the Government as a great supporter. I give the same personal commitment as Premier. One of the biggestevents staged in Sydney every year is the Gay and Lesbian Mardi Gras parade, which enjoys strong bipartisan support. It has enjoyed funding since 2009, which continues under a Liberal-Nationals Government, and some 20,000 overseas and interstate visitors generate approximately $30 million for the visitor economy.

This financial year the Government has provided more than $300,000 in funding for ACON to deliver a range of HIV prevention, care and support programs for people with HIV, sex workers, outreach projects, and needle and syringe programs. Earlier this year the Government and ACON jointly funded the Ending HIV campaign. In 2013-14 the Government has provided more than $600,000 to the Gender Centre and Twenty10, which is a non-profit welfare organisation located in Chippendale that has been operating for more than 30 years. Government support is provided through the Sydney West Local Health District Youth Service and the Department of Family and Community Services. I thank and admire the hardworking staff at these organisations for the work they do in the community.

In August this year the Gay Rugby World Cup, known as the Bingham Cup, is coming to Sydney. The Government will provide financial and in-kind support for up to 40 teams from 15 countries. Some 1,500 players and 10,000 spectators will flock to the event. I refer to conscience votes and pay tribute to the former Premier. His leadership on matters of conscience was exemplary and showed this Parliament how members should respond on matters of conscience. I say to the member for Sydney that my position will be exactly the same as the position of the former Premier, who showed great leadership on matters of conscience; so too will the Government I lead. I look forward to working together on these issues.

The two issues highlighted – the unequivocal commitment to equality based on sexuality, and the question of when a conscience vote should be granted – have prompted me to write the following letter to Mr Baird.

The Hon Mike Baird MP

Premier of NSW

GPO Box 5341

Sydney NSW 2001

Sunday 25 May 2014

Dear Premier Baird

SUPPORT FOR THE LGBTI COMMUNITY OF NSW

I am writing regarding the answer which you gave in the Legislative Assembly on Wednesday 7 May 2014 to a question from the Member for Sydney about your, and your Government’s, support for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community of NSW.

In particular, I would like to ask you questions about two of the comments which you gave. First, I note that in your answer you said the following:

“Discrimination against any individual or group on the basis of race, religion or sexuality has no place in New South Wales. Members of the lesbian, gay, bisexual, transgender and intersex community can continue to have the Government as a great supporter. I give the same personal commitment as Premier.”

I am interested to know how far your personal commitment to and support for the LGBTI community extends. Specifically, in this quote you state that “[d]iscrimination against any individual or group on the basis of… sexuality has no place in New South Wales” and yet you have previously voted against equal adoption rights for same-sex couples.

Does this statement, which contains no equivocation, mean that you now concede your previous position on same-sex adoption was wrong? Will you give an explicit commitment to support equal adoption and other parenting rights for LGBTI couples and families in the future?

Given the absence of any qualifications on your support for non-discrimination on the basis of sexuality, I am also interested to know your position on the exceptions which are offered to religious organisations under the Anti-Discrimination Act 1977. These exceptions significantly and substantively undermine the anti-discrimination protections which currently exist for lesbian, gay and trans* people in NSW.

Do you support the removal of religious exceptions, such as section 56(d), from the NSW Anti-Discrimination Act 1977 in order to better protect LGBTI people from discrimination? Or do you wish to amend the answer that you gave in Question Time to instead read: “[d[iscrimination against any individual or group on the basis of… sexuality has no place in New South Wales unless it is performed by a religious organisation, in which case such actions will be protected by law”?

Secondly, I would like to find out more details about your position on conscience votes regarding LGBTI rights. In your answer in Parliament, you made the following comment:

“I say to the member for Sydney that my position will be exactly the same as the position of the former Premier, who showed great leadership on matters of conscience; so too will the Government I lead.”

It is unclear from this answer exactly where you would draw the line on conscience votes. It is assumed that this means you would allow a conscience vote on same-sex marriage were it to return to the NSW Parliament for a fresh vote (although, given the High Court’s decision last December, that would appear to be both unlikely and unproductive).

Alternatively, does this mean that you would allow conscience votes for Liberal and National Party members if Bills were introduced seeking to wind back rights which are already enjoyed by LGBTI people in NSW? For example, would you support a conscience vote on a Bill which sought to remove the equal rights of same-sex couples to adopt? It would be disappointing if your Government did anything other than vote against such a Bill en bloc.

It is also expected that legislation will be introduced in the next few months which seeks to allow gay and bisexual men who were convicted because of the illegality of homosexuality before 1984, and because of the unequal age of consent between 1984 and 2003, to have their convictions expunged. This Bill will go some way to redressing the very real injustices, and long-term consequences, caused by the homophobic criminalization of homosexuality, and the equally homophobic unequal age of consent.

Again, it would be incredibly disappointing if members of the Government were free to vote against such a Bill, especially because the only way that this Bill would be a ‘matter of conscience’ for an MP is if they still believed that sexual intercourse between men was morally wrong.

For these reasons, I would greatly appreciate it if you could clarify your position on conscience votes, in particular whether they would extend beyond state-based same-sex marriage, and whether you would allow Liberal-National Government MPs to vote to repeal same-sex adoption rights, or to vote against the expungement of historical convictions.

Thank you in advance for considering the issues and questions raised in this correspondence.

Sincerely,

Alastair Lawrie

How far does Premier Baird's support for the LGBTI community extend? (image source: The Conversation).

How far does Premier Baird’s support for the LGBTI community really extend? (image source: The Conversation).