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12 March 1991 - Current

Page 3374
15 October 2014
COUNCIL Statement of Compatibility DAVIS


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 Whilst the laws that criminalised homosexual sexual activity have been repealed, the effects of these laws and of discriminatory enforcement of general sexual offences continue if a conviction or finding of guilt remains on a person's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