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Monday 12 October 2015


P&R: Historic Offences: Yes, But...

Posted in: Comment
By Politics and religion commentator Craig Young - 27th November 2014

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After assisting the major initiatives of LGBT marriage equality and associated inclusive adoption reform, the Key administration is itself advocating the erasure of pre-eighties historical gay sexual 'offences'. Why, and how should we view this in perspective?

Obviously, there are still major LGBT legislative reforms awaiting attention. I'm not so sure about Green List MP Kevin Hague's residual adoption reform bill - something clearly needs to be done to open adoptions up in the context of durable de facto relationships, but I'm unsure whether civil unions will survive in the long term. As for adoptions, most are now co-parent adoptions in blended straight or LGBTI families, and LGBT couples are covered now under the auspices of the Marriage Equality Amendment Act.

As for more significant reforms, whether or not comprehensive anti-bullying reform could also occur under the Key administration is a moot point. If such reforms emphasised the benefits of educational retention and increased opportunities for employability for bullied LGBT school students, then they might win the support of the Key administration. Does it also depend on how the Cameron administration decides to tackle the issue in the United Kingdom, given the Key/Cameron axis?

However, undeniably the most pressing issue is transgender rights. It would be excellent to hope for some definitive and substantive progress when it comes to the direct addition of gender identity to New Zealand's antidiscrimination Human Rights Act 1993, akin to Australia and the United Kingdom, both of which have trans-inclusive antidiscrimination legislation. Unfortunately, New Zealand seems set on following Canada, which is similarly dragging the chain on this issue. Is it because the question of ending transphobic employment discrimination conflicts with the centre-right's vision of a deregulated labour market? Does it realise that this means that otherwise well-suited transgender individuals may end up claiming social welfare benefits because transphobic discrimination does exist in labour markets? Or will Amy Adams, the new Key administration Minister for Justice, be more amenable to reform proposals if lobbied vigorously enough?

As for the proposed 'historic offences erasure' reform bill, it is modest, incremental change. All it means is that historic "criminal" but now private, consensual and non-criminal gay sex convictions will be erased from police and justice department data bases. It follows similar proposals and legislation in Victoria and New South Wales (Australia) under its Liberal/National Coalition state governments and the Cameron administration in the United Kingdom. It will mean that older and retired gay men can now work in voluntary organisations without the fear of often-necessary police background checks disclosing what haven't been 'offences' since the passage of the Homosexual Law Reform Act 1986. According to the text of the Homosexual Law Reform Act 1986, gay men could be convicted under Sections 140-142 of the Crimes Act 1961 (repealed by the legislation in question). As my associate Jacqui Stanford noted in a news article on this matter, the current Criminal Records (Clean Slate) Act 2005 requires someone to go through the rigmarole of having to apply to the District Court for the review and consequent erasure of such records at present. (One could ask similar questions about sex work and transwomen formerly arrested for what are currently not offences under the Prostitution Reform Act 2003, primarily previous convictions under Section 26 of the Summary Offences Act 1981, which criminalised soliciting (street sex work).

(It won't remove all convictions for consensual gay sex- "indecent exposure" is still an offence under Section 125 of the Crimes Act 1961 and Section 27 of the Summary Offences Act 1981, and will remain so, and thus, database record information about those charges will be retained.)

Now, I am certainly not opposed to enactment of such an historic offences erasure bill and commend Ms Adams for her openness to reform. However, it would also be good to see some attention to comprehensive anti-bullying reform and especially transgender rights, which is fast becoming an embarrassing albatross within New Zealand's human rights record, akin to marriage equality within Australian law. As with our Australian counterparts in the context of their struggle for marriage equality, New Zealand LGBT communities need to repeatedly assert the neccessity of direct inclusion of gender identity within an amended antidiscrimination Human Rights Act 1993.

None of us are free until all of us are free.

Recommended:
Victoria: Sentencing Amendment (Historic Homosexual Convictions Expungement) Act 2014: http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/PubPDocs.nsf/ee665e366dcb6cb0ca256da400837f6b/48b11bdca0edb3e9ca257d5500191233/$FILE/571546bi1. pdf
New South Wales: Criminal Records Amendment (Historic Homosexual Offences) Bill 2014:http://www.parliament.nsw.gov.au/prod/parlment/nswbills.nsf/d6079cf53295ca7dca256e66001e39d2/861eaf4a40f06eafca257d55002bce70? OpenDocument
South Australia: Spent Convictions (Decriminalised Offences) Amendment Act 2013: http://www.legislation.sa.gov.au/LZ/V/A/2013/SPENT%20CONVICTIONS%20(DECRIMINALISED%20OFFENCES)%20AMENDMENT%20ACT%202013_88/2013.88.UN. PDF
Stonewall UK: "A step by step guide to deleting gay sex convictions from your record" Stonewall UK (October 2012): http://www.stonewall.org.uk/documents/protection_of_freedoms_guide. pdf

 
Politics and religion commentator Craig Young - 27th November 2014

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