The Criminal Law (Historical Homosexual Convictions Expungement) Act 2017 was passed in Queensland Parliament on 10 October 2017, and took effect on 23 October.
This was a historic achievement, meaning the majority of people who have criminal convictions as a result of prohibitions on male homosexual conduct in that state can now apply to have those records expunged.
But it is only a partial victory – because people who were criminalised due to the unequal age of consent, which existed between 1991 and 2016, are not able to apply. That’s because section 18(2)(a) limits relevant offences to where:
“the other person who engaged, or allegedly engaged, in the act of omission constituting the offence –
(i) consented to the act or omission; and
(ii) was 18 years or more at the time the offence was committed or alleged to have been committed.”
This is an incredibly disappointing outcome, exposing men who would not have been convicted but for the homophobic unequal age of consent which operated for a quarter of a century, to many more years of living with unjust convictions on their criminal records. And it means the campaign to expand the expungement scheme must continue.
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.
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
Brisbane QLD 4000
Friday 26 May 2017
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.