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’.
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:
Queensland Law Reform Commission
PO Box 13312
George St Post Shop QLD 4003
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.
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.
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.
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.
[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.
[xviii] Ibid, page 39.