Hansard debates

SENTENCING AMENDMENT (HISTORICAL HOMOSEXUAL CONVICTIONS
EXPUNGEMENT) BILL 2014

  Hon. D. M. DAVIS (Minister for Health) -- I move:
  That the bill be treated as an urgent bill.
Motion agreed to.
Statement of compatibility
Hon. D. M. DAVIS (Minister  for Health) tabled following statement in accordance
with Charter of Human Rights and Responsibilities Act 2006:

  In  accordance  with   section  28  of  the   Charter  of  Human   Rights  and
  Responsibilities  Act  2006, (the  'charter  act'), I make  this  statement of
  compatibility with respect to the Sentencing  Amendment (Historical Homosexual
  Convictions Expungement) Bill 2014.
  In my  opinion,  the Sentencing  Amendment (Historical Homosexual  Convictions
  Expungement)   Bill  2014,  as  introduced  to  the  Legislative  Council,  is
  compatible with human rights as set out in the charter act. I base  my opinion
  on the reasons outlined in this statement.
  Overview

  The  bill makes amendments to the Sentencing Act 1991 with  the  objective  of
  creating a scheme for people convicted or found guilty of offences constituted
  by conduct in connection with homosexual sexual activity to apply to have that
  record expunged as long as that conduct would not  be an offence under today's
  law.
  Expungement will require  that  the record of a conviction or finding of guilt
  be disregarded and not disclosed. In so doing, it  will remove the stigma of a
  criminal record and the  practical impediments created by a criminal record in
  relation to travel and employment.
  Human rights issues
  Human rights protected by the charter act that are relevant to the bill

  Section 8 -- Recognition and equality before the law
  Section 8(3) of the charter act provides that  every person  has the  right to
  equal and effective protection against discrimination. For the purposes of the
  charter act, discrimination is defined to mean discrimination on  the basis of
  an attribute set out  in section 6 of the Equal Opportunity Act and relevantly
  includes sexual orientation.
  Whilst  the laws  that  criminalised  homosexual  sexual  activity  have  been
  repealed,  the effects of  these  laws and  of  discriminatory enforcement  of
  general sexual offences continue if a conviction  or finding of guilt  remains
  on a person's record.

  Section  8(2)  of  the  charter  act  is  promoted  in  relation to persons of
  homosexual sexual orientation because the bill provides for the expungement of
  criminal records  that  relate to homosexual  sexual  activity that  would  be
  lawful today and will remove the stigma associated with such criminal records.
  In addition, the bill includes 'expunged homosexual conviction' under new part
  8 of the Sentencing Act 1991 as an attribute under the  Equal Opportunity  Act
  2010 (EO  act). Accordingly, in addition  to the protections  provided  in new
  section  105J of the bill, discrimination on the  basis that  a person  has an
  expunged homosexual  conviction  is prohibited under the EO act and can be the
  subject of  complaint  to the  Victorian  Equal Opportunity  and  Human Rights
  Commission.
  The  bill does not  apply to convictions  which  involved heterosexual  sexual
  conduct.

  Although this may be discriminatory  on its face against  persons with certain
  historical convictions based on heterosexual  conduct,  charter  act  s.  8(4)
  provides that measures taken for the purpose of assisting groups disadvantaged
  because of discrimination do not constitute discrimination.
  Section 13 -- Right to privacy and reputation
  Section 13 of the charter act provides that a person has the right not to have
  his or her privacy unlawfully or arbitrarily interfered with and  not  to have
  his or her reputation unlawfully attacked.
  Section  13 rights not to have reputation unlawfully  attacked are enhanced by
  the bill.  Findings of guilt  and convictions in relation  to sexual offending
  and public morality offences carry stigma. The existence of such records might
  also restrict certain employment opportunities and volunteering.

  The person will not be obliged to disclose an expunged record and the expunged
  record of a person will not be a proper ground 

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 for refusing the person any appointment, post, status or privilege.
  Section 13 privacy  rights are also relevant  because the application  process
  requires  applicants  to  provide  personal   information  to  the   secretary
  including, for example, name, date of birth, address etc.
  The applicant will  give written authority to the secretary to access relevant
  government  records that  include  the applicant's  personal  information.  If
  official  records  are  not  clear  or  contain  insufficient information, the
  applicant will  be  obliged to provide  further evidence which  could  involve
  seeking corroborating evidence about  the  consensual nature of the homosexual
  conduct from other  parties, but such statements can only be provided with the
  cooperation and consent  of the third parties. The requirements for and powers
  to obtain this information are  not  arbitrary, are set out in legislation and
  necessary to assess the application and so do not interfere with the s.

  13 privacy right.
  To further protect the applicant's privacy, the  bill  makes  it an offence to
  disclose information  handled as part  of the application process  or about an
  expunged  conviction. (See new sections 105J(5) and 105O(1)).  If an applicant
  seeks  a  review  of  the   secretary's  decision,  the  Victorian  Civil  and
  Administrative Tribunal (VCAT) must not identify the applicant unless it is in
  the public interest  to  do so. The tribunal  file will not be  open  to third
  parties.
  If a  person who  would have  been entitled  to  apply  to  have a  homosexual
  conviction  expunged  has  died,  the  bill   provides   that  an  appropriate
  representative (such as a spouse or domestic partner) may make an  application
  on the deceased's behalf. This may give  the appropriate representative access
  to personal details about the deceased person.

  However a person's right to privacy under s. 13 does not extend to a  deceased
  person.  In any event, the  strict restrictions on releasing details about the
  expunged  historical homosexual  conviction  or the  application  process will
  continue to protect the deceased person's information more broadly.
  Section 15 -- Freedom of expression
  Section 15(2)  of the  charter act provides that every person has the right to
  freedom of expression, which  includes the freedom to seek, receive and impart
  information and ideas of all kinds.

  The  bill  does  place  limitations on the ability  of  people  to  report  on
  proceedings  in VCAT. The bill also  makes it an offence for  a person who has
  any  access to  official records  to disclose the fact that  a person  with an
  expunged  conviction had been charged  with or convicted of  that offence, and
  makes  it an offence  to  make  a  record  of,  disclose  or  communicate  any
  information  obtained  during  the  course   of   the  application  where  the
  information was obtained in performing a function or exercising  a power under
  these provisions.
  However, the bill does not restrict the right set out in section 15(2) of  the
  charter act because these limitations are lawful and protect the rights of the
  applicant to privacy and their reputation.  VCAT retains the power to identify
  parties to an application if  it is in the public interest to  do  so, and the
  confidentiality  provisions are  in  place  to  protect  the  privacy  of  the
  applicant for an expunged conviction.

  In this way, a  careful  balance has been struck between freedom of expression
  and the rights of privacy and reputation.
  Section 24 -- Right to a fair hearing
  Section  24(1) of the charter act  provides  that  a  person  charged  with  a
  criminal  offence or a party to  a civil proceeding has  the right to have the
  charge or proceeding  decided by a competent, independent and impartial  court
  or tribunal after a fair and public hearing.
  In my  view, the  application to and determination by the secretary  is not  a
  civil proceeding  to  which s. 24(1)  applies.  If the secretary  refuses  the
  application, he or she is  obliged  under  new  section 105G(4) to provide the
  applicant with reasons for that decision and the applicant  can  seek a review
  of that decision by VCAT on the merits of the case.

  Review proceedings in VCAT are a civil proceeding to  which s.  24 applies and
  which satisfy s. 24.
  Section  24(3)  of  the  charter act also provides that a proceeding should be
  public unless an act other than this charter  permits. The proposed amendments
  to  schedule 1 of the  Victorian Civil and Administrative Tribunal Act provide
  that the VCAT proceedings cannot be  reported on unless VCAT orders that it is
  in the public interest to do so.
  David Davis, MP
 Minister for Health
 Minister for Ageing