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Expunging Criminal Convictions for Historical Gay Sex Offences Report Expunging criminal convictions for historical gay sex offences Report Report No 74 August 2016 Queensland Law Reform Commission Expunging criminal convictions for historical gay sex offences Report Report No 74 August 2016 Postal address: PO Box 13312, George Street Post Shop, Qld 4003 Telephone: (07) 3247 4544 Facsimile: (07) 3247 9045 Email: [email protected] Website: www.qlrc.qld.gov.au © State of Queensland (Queensland Law Reform Commission) 2016 ISBN: 978-0-9874889-7-8 To: The Honourable Yvette D’Ath MP Attorney-General and Minister for Justice and Minister for Training and Skills In accordance with section 15 of the Law Reform Commission Act 1968, the Commission is pleased to present its Report, Expunging Criminal Convictions for Historical Gay Sex Offences. [original signed] [original signed] The Honourable Justice David Jackson Mr Peter Hastie QC Chairperson Member [original signed] [original signed] Professor Peter McDermott RFD Ms Samantha Traves Member Member [original signed] The Honourable Margaret Wilson QC Member COMMISSION MEMBERS Chairperson: The Hon Justice David Jackson Part-time members: Mr Peter Hastie QC Prof Peter McDermott RFD Ms Samantha Traves The Hon Margaret Wilson QC SECRETARIAT Director: Mr David Groth Assistant Director: Mrs Cathy Green Secretary: Mrs Jenny Manthey Legal Officers: Ms Anita Galeazzi Mrs Elise Ho Ms Paula Rogers Administrative Officer: Ms Kahren Giles Previous publication in this reference: Queensland Law Reform Commission, Review of expunging of criminal convictions for historical gay sex offences, Consultation Paper, WP No 74 (February 2016) Abbreviations and Glossary ACT Australian Capital Territory ADCQ Anti-Discrimination Commission Queensland ADC Tasmania Anti-Discrimination Commissioner Tasmania, ‘Treatment of convictions for Discussion Paper consensual sexual activity between adult males’ (Discussion Paper, 31 October (2014) 2014) ADC Tasmania Anti-Discrimination Commissioner Tasmania, ‘Treatment of historic criminal Report (2015) records for consensual homosexual activity and related conduct’ (Report, April 2015) BAQ Bar Association of Queensland CJC Information Criminal Justice Commission Queensland, ‘Reforms in Laws Relating to Paper (1990) Homosexuality’ (Information Paper, May 1990) date of legalisation The date of commencement of the Criminal Code and Another Act Amendment Act 1990 — 19 January 1991 — by which the former offences under sections 208(1), 208(3), 209 and 211 of the Criminal Code were repealed. DJAG Department of Justice and Attorney-General, Queensland expungement Legislation providing for the expungement of convictions for historical gay sex legislation offences, namely, in other jurisdictions: Spent Convictions Act 2000 (ACT) pts 3A–3C, inserted by Spent Convictions (Historical Homosexual Convictions Extinguishment) Amendment Act 2015 (ACT) Criminal Records Act 1991 (NSW) pt 4A, inserted by Criminal Records Amendment (Historical Homosexual Offences) Act 2014 (NSW) Spent Convictions Act 2009 (SA), as amended by Spent Convictions (Decriminalised Offences) Amendment Act 2013 (SA) Draft Historical Homosexual Convictions Bill 2016 (Tas), released for public comment on 4 July 2016 Sentencing Act 1991 (Vic) pt 8, inserted by Sentencing Amendment (Historical Homosexual Convictions Expungement) Act 2014 (Vic) Protection of Freedoms Act 2012 (UK) c 9, pt 5 ch 4 expungement Provisions for the expungement of convictions for historical gay sex offences, scheme including those introduced by expungement legislation in other jurisdictions. Although different schemes use different language when referring to expungement (such as ‘extinguish’ or ‘disregard’), the terms ‘expunge’ and ‘expungement’ are generally used throughout this Report. gross indecency Sexual activity between males, other than anal intercourse, under former section 211 of the Criminal Code and its equivalents in other jurisdictions (also called ‘indecent assault on males’ or ‘indecent practices between males’). historical gay sex The terms of reference for this review refer to ‘historical gay sex offences’, offence including particular offences that were repealed by the Criminal Code and Another Act Amendment Act 1990. Accordingly, that terminology is used to refer generally to former offences for which homosexual activity could be punished and particularly in relation to the former offences under sections 208(1), 208(3), 209 and 211 of the Criminal Code and their equivalents in other jurisdictions. homosexual Used throughout this Report generally to refer to sexual activity between people activity of the same sex, regardless of how they identify their sexual orientation or gender. Human Rights Law Human Rights Law Centre, ‘Righting historical wrongs: Background paper for a Centre Background legislative scheme to expunge convictions for historical consensual gay sex Paper (2014) offences in Victoria’ (Background Paper, 12 January 2014) LGBTI Lesbian, gay, bi-sexual, transgender (or transsexual), and intersex LGBTI Legal LGBTI Legal Service Inc et al, ‘Historical criminal treatment of consensual Service Discussion sexual activity between men in Queensland’ (Discussion Paper, September Paper (2015) 2015) NSW New South Wales ODPP Office of the Director of Public Prosecutions, Queensland proposed The proposed new expungement legislation for Queensland recommended in expungement Chapter 2 of this Report. legislation PCJC Report No 2 Parliamentary Criminal Justice Committee, Parliament of Queensland, Report (1990) into the Report of the Criminal Justice Commission entitled ‘Reforms in Laws Relating to Homosexuality — An Information Paper’, Report No 2 (October 1990) QCAT Queensland Civil and Administrative Tribunal QCS Queensland Corrective Services, Department of Justice and Attorney-General QLRC Consultation Queensland Law Reform Commission, Review of expunging of criminal Paper No 74 (2016) convictions for historical gay sex offences, Consultation Paper WP No 74 (February 2016) QPS Queensland Police Service QSA Queensland State Archives SA South Australia sodomy Anal intercourse under former sections 208(1) and 208(3), and current section 208, of the Criminal Code, and their equivalents in other jurisdictions (which are sometimes also referred to as ‘buggery’). spent convictions Legislation in Queensland and other jurisdictions providing for certain types of legislation convictions to be treated as spent, or non-existent, after the lapse of a particular period of time and on other conditions, namely: Spent Convictions Act 2000 (ACT) Criminal Records Act 1991 (NSW) Criminal Records (Spent Convictions) Act (NT) Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) Spent Convictions Act 2009 (SA) Annulled Convictions Act 2003 (Tas) Spent Convictions Act 1988 (WA) Criminal Records (Clean Slate) Act 2004 (NZ) Rehabilitation of Offenders Act 1974 (UK) c 53 Vic Victoria * Except where otherwise indicated, references to legislation in this Report are references to Queensland legislation. Table of Contents EXECUTIVE SUMMARY ............................................................................................... i LIST OF RECOMMENDATIONS ................................................................................. xi CHAPTER 1 ................................................................................................................. 1 INTRODUCTION .......................................................................................................... 1 BACKGROUND ............................................................................................................................. 1 THE COMMISSION’S REVIEW .................................................................................................... 2 METHODOLOGY OF THIS REVIEW............................................................................................ 3 The Consultation Paper ........................................................................................................ 3 Consultation process ............................................................................................................. 3 STRUCTURE OF THIS REPORT ................................................................................................. 4 TERMINOLOGY ............................................................................................................................ 4 SOURCES ..................................................................................................................................... 4 CHAPTER 2 ................................................................................................................. 5 A NEW EXPUNGEMENT SCHEME ............................................................................. 5 INTRODUCTION ........................................................................................................................... 5 BACKGROUND ............................................................................................................................. 5 Homosexual law reform ........................................................................................................ 6 Likely numbers of persons convicted .................................................................................... 9 EXPUNGEMENT AND EXISTING LAWS ................................................................................... 13 Spent convictions legislation ..............................................................................................
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