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Thursday 10 November 2016

Historic Offences: A Submission Guide

Posted in: Our Communities
By Craig Young - 29th August 2016

After Wiremu Demchick organised a petition on the issue, the Justice and Electoral Committee will take submissions over the next six weeks on the issue of historic homosexual offences. In order to facilitate any submissions on the issue, this article has been designed as a submission prompter.

If you're an older gay man who was caught out before the decriminalisation of male homosexuality under the Homosexual Law Reform Act 1986 in New Zealand, and now cannot serve as a voluntary committee officer due to a background check that shows a 'criminal record' from that offence, then your personal stories of such obstacles are valuable now, of course. However, beyond these personal stories, this is the background.

Before homosexual law reform, Sections 140-142 of the New Zealand Crimes Act 1961 outlawed all gay male sex, whether with a consenting adult, consensual or non-consensual. In 1986, the Homosexual Law Reform Act was passed and erased the prior 'offence' of consensual gay sex with another man over the age of sixteen, invalidating Sections 140-142, except when it came to criminal records. The Criminal Records (Clean Slate) Act 2005 was passed to insure that people could appeal to the Minister of Justice for review of their prior offending to evaluate whether or not their criminal record should be erased.

Victoria, South Australia, New South Wales, the Australian Capital Territory, Queensland, the United Kingdom, Germany and Canada have all either legislated for the erasure of historic gay 'offences' under analogous sections of their criminal code legislation or have signalled that they intend to do so. The Law Society of Western Australia has also advocated that that Australian state also do so. I have no argument with the points made by Justice Minister Amy Adams that pedophile sex and same-sex rape remain offences and will be ineligible for erasure, but Adams also estimates that about four hundred cases of potential beneficiaries of historic gay 'offences' erasure do not fall into this category. However, apparently it would be 'too onerous' for the Ministry of Justice to sort through these cases, decide whether they fit the parameters of consensual adult gay sex that currently prevail under the Homosexual Law Reform Act 1986 and retrospectively pardon them.

To assist submissions, I have also included news media links to announcements of overseas historic gay offence erasure legislation and copies of the aformentioned legislation at the end of this article, so that it can be cited in any submissions, as well as an excellent in depth article from the University of Auckland's Equal Justice Project on the impact of the historic conviction situation on the lives of older gay men who run afoul of such misdemeanours on police background checks.

Submissions to the Justice and Electoral Select Committee on this issue close on October 6, 2016.


Victoria: Sentencing Amendment (Historic Homosexual Offences Expungement) Act 2014: au/au/legis/vi c/bill/sahceb2014i855/

South Australia: Spent Convictions (Decriminalised Offences) Amendment Act 2013: au /au/legis/sa/bill/ scoab2013488/

Australian Capital Territory: Spent Convictions (Historic Homosexual Offences) Extinguishment Amendment Act 2015:http://www.legislation. act. gov. au/a/2015-45/20151107-62281/ pdf/2015-45.pdf

Disregarding Certain Criminal Convictions: Chapter 4 Part 5 Protection of Freedoms Act 2012: Application Form and Guidance Note for Applicants: uk/government/uploads/system /uploads/attachment_data/file/ 118140/guidance-application. pdf

Extinguishment of Historical Homosexual Offences: New South Wales Justice Fact Sheet: February 2015:http://www.justice.nsw. Extinguishment_of_homosexual_ offences_factsheet_Feb15.pdf

Law Reform Relating to Historical Homosexual Convictions: Law Society of Western Australia Submission: April 2016:https://www. content/uploads/2015/10/ 2016MAY04-FINAL-Submission- Expunging-homosexual- convictions-C260416C1.pdf

Treatment of Historical Criminal Records for Consensual Homosexual Activity and Related Conduct (Tasmanian Anti-Discrimination Commissioner: April 2015:http://equalopportunity. file/0006/330792/2015-04_ FINAL_REPORT-Treatment_of_ historic_records_for_ consensual_homosexual_ activity.pdf

Tasmania: Historical Homosexual Convictions Bill: Tamanian Department of Justice: June 2016:http://www.justice.tas. previous_consultations/ historical_homosexual_ convictions_bill_2016

Brodey Carmody: "When gay sex was a crime: Campaign to expunge criminal records goes national"Crikey:17.01.2014:https://www. gay-sex-was-a-crime-campaign- to-expunge-records-goes- national/

"WA Government Considering Position on Historic Gay Offences"Out in Perth: 27.08.2016:http://www. considering-position- historical-convictions/

EGALE Canada: The Just Society Report: June 2016: content/uploads/2016/06/FINAL_ REPORT_EGALE.pdf

John Ibbotson: “Trudeau to urge pardon for man deemed a dangerous sexual offender for being gay in the 1960s”Globe and Mail:27.02.2016:http://www. theglobeandmail. com/news/politics/ottawa-to- consider-pardon-for-gay-men- convicted-under-pre-1969laws/ article28927302/

John Ibbotson: “Liberals gay-pardon decision applauded but obstacles still exist”Globe and Mail:29.02.2016:http://www. theglobeandmail. com/news/politics/liberals- gay-pardon-decision-applauded- but-obstacles-still-exist/ article28944769/

Equal Justice Project: "Cross-Examination: The Persecution Game: Pardoning Historic Convictions for Same-Sex Intercourse" EJP: June 2015:http:// equaljusticeproject. examination-the-persecution- game-pardoning-historic- convictions-for-same-sex- intercourse/

Queensland Law Reform Commission: Review of expunging criminal convictions for historical gay sex offences: WP 74: February 2016: au/__data/assets/pdf_file/ 0003/457905/qlrc-wp-74-web.pdf

Historical criminal treatment of consensual sexual activity between men in Queensland: LGBTI Legal Service: September 2015:http:// sites/default/files/_dbase_ upl/Gay%20discussion.pdf

Germany to wipe historic gay sex convictions: Gaynz.Com: 12.05.2016:http://www.gaynz. com/articles/publish/3/ article_18266.php

Isaac Davidson: "Pardoning men convicted for being gay 'may be too difficult' Radio New Zealand: 06.07.2016:http://www. politics/govt-pardoning-men- convicted-for-being-gay-may- be-too-difficult/

Craig Young - 29th August 2016

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