Review of expunging of criminal convictions for historical gay sex offences Consultation Paper WP No 74 February 2016 blank left intentionally page This Queensland Law Reform Commission Review of expunging of criminal convictions for historical gay sex offences Consultation Paper WP No 74 February 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: 978-0-9874889-6-1 SUBMISSIONS You are invited to make submissions on the issues raised in this Consultation Paper. Submissions should be sent to: Email: [email protected] Facsimile: (07) 3247 9045 The Secretary Queensland Law Reform Commission PO Box 13312 George Street Post Shop Qld 4003 An appointment to make an oral submission may be made by telephoning: (07) 3247 4544 Closing date: 29 March 2016 PRIVACY AND CONFIDENTIALITY Any personal information you provide in a submission will be collected by the Queensland Law Reform Commission for the purposes of this review. Unless clearly indicated otherwise, the Commission may refer to or quote from your submission and refer to your name in future publications for this review. Further, future publications for this review will be published on the Commission’s website. Please indicate clearly if you do not want your submission, or any part of it, or your name to be referred to in a future publication for the review. Please note however that all submissions may be subject to disclosure under the Right to Information Act 2009 (Qld), and access applications for submissions, including those for which confidentiality has been requested, will be determined in accordance with that Act. blank left intentionally page This 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 Ms Elise Ho Ms Paula Rogers Administrative Officer: Ms Kahren Giles Abbreviations and Glossary ACT Australian Capital Territory ADC Tasmania Anti-Discrimination Commissioner Tasmania, ‘Treatment of convictions for Discussion Paper consensual sexual activity between adult males’ (Discussion Paper, 31 (2014) October 2014) ADC Tasmania Anti-Discrimination Commissioner Tasmania, ‘Treatment of historic criminal Report (2015) records for consensual homosexual activity and related conduct’ (Report, April 2015) Courts Service Queensland Courts Service within DJAG, including the Supreme, District and Land Courts Service and Magistrates Courts Service DJAG Department of Justice and Attorney-General, Queensland Eng England and Wales Expungement Legislation in other jurisdictions providing for the expunging of convictions for legislation historical gay sex offences, namely: Spent Convictions (Historical Homosexual Convictions Extinguishment) Amendment Act 2015 (ACT), inserting new pts 3A–3C in the Spent Convictions Act 2000 (ACT) Criminal Records Amendment (Historical Homosexual Offences) Act 2014 (NSW), inserting new pt 4A in the Criminal Records Act 1991 (NSW) Spent Convictions (Decriminalised Offences) Amendment Act 2013 (SA), amending the Spent Convictions Act 2009 (SA) Sentencing Amendment (Historical Homosexual Convictions Expungement) Act 2014 (Vic), inserting new pt 8 in the Sentencing Act 1991 (Vic) Protection of Freedoms Act 2012 (UK) c 9, pt 5 ch 4 Expungement Provisions for the expunging 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 Paper. 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 (Qld). Accordingly, that terminology is used throughout this Paper to refer generally to former offences for which homosexual activity could be punished. Homosexual activity Used throughout this Paper generally to refer to sexual activity between people 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 Legal Service LGBTI Legal Service Inc et al, ‘Historical criminal treatment of consensual Discussion Paper sexual activity between men in Queensland’ (Discussion Paper, September (2015) 2015) NSW New South Wales ODPP Office of the Director of Public Prosecutions, Queensland SA South Australia 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, 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 Paper are references to Queensland legislation. blank left intentionally page This Table of Contents INTRODUCTION .......................................................................................................... 1 EXPUNGING OF CRIMINAL CONVICTIONS FOR HISTORICAL GAY SEX OFFENCES .................................................................................................................. 3 BACKGROUND AND OVERVIEW................................................................................................ 3 The relevant offences ............................................................................................................ 5 Legalisation ........................................................................................................................... 6 Anti-discrimination laws ......................................................................................................... 6 Criminal records .................................................................................................................... 7 The effect of disclosure ......................................................................................................... 7 Spent convictions legislation ................................................................................................. 8 Pardons ................................................................................................................................. 9 WHETHER THERE IS A NEED TO CHANGE THE LAW .......................................................... 10 WHAT AN EXPUNGEMENT SCHEME MIGHT LOOK LIKE ...................................................... 10 The approach in other jurisdictions ..................................................................................... 10 Matters for consideration ..................................................................................................... 21 KEY QUESTIONS AND ISSUES ................................................................................ 23 APPENDIX A: TERMS OF REFERENCE ................................................................... 41 APPENDIX B: EXTRACTS OF OFFENCES .............................................................. 45 blank left intentionally page This Introduction [1] Consensual adult male homosexual activity ceased to be a criminal offence in Queensland in 1991. [2] In 2015, the Queensland Government stated that ‘there are a growing number of Australian jurisdictions considering the question of whether historical convictions for consensual sexual activity between males should be expunged from a person’s criminal record’, and expressed support for the consideration of this issue in Queensland.1 [3] On 4 January 2016, the Attorney-General referred the issue to the Commission, requesting it to ‘recommend how Queensland can expunge criminal convictions for “historical gay sex offences” from a person’s criminal history’.2 In doing so, the Commission is to consider a number of specific issues, including what the features of an expungement scheme should be. [4] This Consultation Paper gives an overview of the relevant legal issues in the review, and asks a number of specific questions. The Commission welcomes submissions on those questions, as well as any other issues relevant to the terms of reference. Details on how to make a submission, including a confidential submission, are set out at the front of this Paper. [5] The closing date for submissions is 29 March 2016. [6] The Commission is required to provide its final report to the Attorney- General by 31 August 2016. 1 Queensland, Parliamentary Debates, Legislative Assembly, 20 August 2015, 35 (Y D’Ath, Attorney-General and Minister for Justice and Minister for Training and Skills). See also Queensland