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Wiping the slate clean: historic convictions for gay sex must be expunged

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26 September 2012

Associate Professor Paula Gerber
Associate Professor Paula Gerber

by Associate Professor Paula Gerber

Most of the current media relating to gay rights focuses on marriage equality. But for some older gay men, another issue is even more important.

Sex between consenting men ceased to be a crime in Australia between 1975 and 1997, with South Australia being the first state to decriminalise sodomy and Tasmania the last. But the legacy of those laws still haunts many men, for they continue to carry the stigma of a criminal conviction.

This burden, for activity that has been legal for many years, is something that may not only harm their mental health, but also negatively impact on their career choices.

This is because there are certain jobs that a person with a criminal record may be barred from, including being a police officer, prison officer, teacher, teacher’s aide or provider of child care services.

The United Kingdom has recently taken steps to remedy this problem by enacting legislation to expunge historic convictions for consensual gay sex.

The UK reforms provide for the removal of convictions for “gross indecency” before the decriminalisation of homosexual conduct in 1967, as well as convictions that arose from consensual gay sex involving men aged between 16 and 21, before the age of consent for homosexual sex was made equal with that for heterosexual sex.

No Australian state or territory has gone down the same path as the UK and passed legislation that explicitly addresses the removal of criminal convictions for consensual homosexual conduct.

Rather, most Australian jurisdictions have general “spent convictions” legislation that provides that a person has the right not to disclose certain convictions for minor criminal offences that occurred a long time ago, usually more than 10 years has elapsed since the conviction was recorded.

Thus, a conviction arising from consensual homosexual conduct in the 1970s will not show up on a criminal record check.

However, if that record check is in Victoria, it is a different story. Victoria stands alone in not having “spent convictions” legislation.

Although Victoria decriminalised sex between men in 1981, past convictions are still likely to have a grave impact on an individual.

In Victoria, the release of a person’s criminal history is governed by the Victorian Police Information Release Policy which provides that records more than 10 years old will not be released (provided there has been no subsequent criminal record).

However, this policy is subject to numerous exceptions, including if the record check is for the purpose of:

  • Registration with a child-screening unit and/or Victorian Institute of Teaching;
  • Assisted Reproductive Treatment;
  • Registration and accreditation of health professionals;
  • Employment in prisons or a police force;
  • Operator Accreditation under the Bus Safety Act;
  • Private Security Licence;
  • Victorian Taxi Accreditation; or
  • If the record includes a sex offence and the records check is for the purposes of employment or voluntary work with children or vulnerable people.

Because the rules about what is to be included in a police record check are part of police policy, rather than legislation, there is much discretion in the hands of the police as to what is, or is not, included in a criminal record check.

This uncertainty leads to a great deal of doubt as to whether a conviction or finding of guilt arising out of consensual homosexual conduct before 1981 will appear on a police record check.

Jamie Gardiner, a vice-president of Liberty Victoria and long-time human rights activist, says:

The current Victorian policy can have a cruel impact on the lives of older gay men prosecuted in the 1970s and before, for conduct which should never have been criminal, and has been legal for over three decades. It can unfairly constrain their employment options and the volunteer work they undertake. Criminal records for breaking bad laws should have been expunged long ago. Such discriminatory laws should not continue to poison the lives of many hundreds of gay and bisexual men.

It is time for Australian governments to right past wrongs by enacting spent conviction legislation that expressly purges convictions imposed on gay men before the decriminalisation of homosexual conduct.

Fundamental principles of justice, equality and human rights dictate that action be taken so as to remove any lingering stigma.

Dr Paula Gerber is an Associate Professor and the Deputy Director of the Castan Centre for Human Rights Law in the Faculty of Law at Monash University.

This article originally appeared in The Conversation.

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