COOGEE state Liberal MP Bruce Notley-Smith has today introduced a bill in NSW Parliament to amend the Criminal Records Act 1991 to allow historical gay sex convictions to become extinguished.
The landmark moment comes less than 24 hours after Victoria had a similar bill tabled to its state parliament, and within the same week that Notley-Smith announced his intention to introduce the bill for NSW.
Under the proposed amendments, NSW residents could apply to extinguish convictions made before the decriminalisation of homosexuality in 1984, and up until 2003 when the discriminatory age of consent — for example, when a 17-year-old gay male was liable for prosecution for having consensual sex with a 16-year-old male — ended.
If the bill is passed, successful applications to have convictions extinguished means it would be like a quashed conviction or a pardon, and the person would not be required to disclose the conviction and a public authority would not be able to disclose the conviction.
People with historical consensual gay sex convictions still face stigma as well as discrimination in employment, travel and if they want to undergo volunteer work.
Notley-Smith’s bill also set out the process to those convictions extinguished.
“Applications will be able to be made for convictions for offences such as procuring an indecent act with a male, and buggery,” the openly-gay MP told Legislative Assembly in what was the first full reading of his private member’s bill.
“Applications will also be able to be made for convictions for indecent or offensive behaviour offences for sexual activity with another person of the same sex.
“Applications will be made to the Secretary of the Department of Justice. A conviction will be extinguished if the Secretary is satisfied that the other person consented to the sexual activity and was at least the current age of consent. This is 16 years, unless there was a special care relationship where the offender was, for example the step-parent, school teacher or health professional of the other person, in which case the age is 18 years.”
Notley-Smith added that when an application has been made, the Secretary would then obtain records about the conviction from public agencies such as the NSW Police and the courts, and will make a decision based on the application and the records.
“If the Secretary intends to reject the application on the basis of this information, the Secretary will give the applicant the opportunity to submit further information,” he said.
“In the event that the decision of the Secretary has been unfavourable, an applicant will be able to seek administrative review of a decision by the NSW Civil and Administrative Tribunal.”
Notley-Smith added that in order to be successful, the applicant needed to demonstrate to the Secretary that the other person involved in the sexual activity constituting the offence consented to the sexual activity, and that they were above 16— or if the other person was under the special care of the convicted person — the age of 18 years.
He also highlighted how gay men would not be the only group who could apply to have historical sex convictions extinguished.
“While it was generally men engaging in homosexual activity who were prosecuted for these offences, it is possible that women engaging in homosexual activity were also prosecuted for indecent or offensive behaviour offences,” he said.
“The bill will also allow women, and transgender people, to apply for convictions to be extinguished.”
Applications can also be made on behalf of a deceased person who was convicted.
“If the convicted person has died, an application may be made… by the convicted person’s legal personal representative or a spouse, de facto partner, parent or child… or a person who was in a close personal relationship with the convicted person immediately before the convicted person’s death,” Notley-Smith said.
The bill has been welcomed by ACON, the NSW Gay and Lesbian Rights Lobby, and Sydney state independent MP Alex Greenwich, whose electorate has a high proportion of gay constituents.
“This is well-drafted legislation will right a historic wrong that saw gay men charged for being who they are and loving who they love,” Greenwich said.
“I commend Bruce Notley-Smith, who has worked closely with myself, our parliamentary colleagues and LGBTI organisations to ensure his legislation extinguishes a wide range of convictions that should have never been law in the first place.”
(Photo: Ann-Marie Calilhanna; Star Observer)