Spent Convictions (Decriminalised Offences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 17 November 2020.)

Ms MICHAELS: Mr Speaker, I draw your attention to the state of the house.

A quorum having been formed:

Mr PICTON (Kaurna) (12:46): It is a bit of a surprise that this bill has been called on, but I am very happy to discuss this important issue of spent convictions. Those of us who have been following the workings of this parliament for some time would know that this an issue that has been raised repeatedly.

The SPEAKER: The member for Kaurna might indicate—

Mr PICTON: I am the lead speaker for the opposition. This has been raised repeatedly by particularly the former member for Fisher, the Hon. Bob Such, who brought this issue to the parliament a number of times. In fact, he brought legislation to this place and introduced bills for spent convictions many times: in 2004, 2006, 2007, 2008 and 2009. It is clearly part of the very proud legacy of the late Hon. Bob Such that the Spent Convictions Act was passed in 2009 under the previous former Labor government, and no doubt because of the hard work and perseverance of Dr Such it was successful and our first system of spent convictions was established.

Under this system, minor offences were automatically spent after 10 years for adults and five years for juveniles. The benefit of the spent convictions system was subject to a person not being found guilty of other offending during the five or 10-year period. If they did not reoffend during the period, the clock was reset. The benefits of a conviction being spent are many: it is not taken into account for a person's criminal history, the person is not required to disclose the offence to any another person, the conviction is not taken to affect a person's character or fitness, and the conviction can no longer be grounds to dismiss a person from a role or revoke any appointment status or privilege.

The opposition's view is that these provisions were both reasonable and necessary. Prior to the legislation coming into effect, some people would not apply for employment or volunteering because they were embarrassed about a single day in their distant past being shared with many other people. Some of the examples of offences in particular that were offences at the time and clearly against the standards of the day were shocking.

There were issues such as constituents raising with their MPs about being fined a few pounds for playing a game of poker in the 1960s. I am sure a number of members of parliament would have to admit to playing a game of poker now, but that was on people's criminal history list. Offences such as this were brought up decades later when they volunteered to help in a nursing home where their friends lived, or volunteer in a community service.

The previous system also created perverse incentives for employers and volunteer organisations. If information was disclosed to them on a police check, there was no clear guidance about what they should consider or how they should consider it. In some cases, out of an abundance of caution, anybody with anything on their criminal history was rejected from working or volunteering. Many smaller organisations did not have the legal or historic knowledge to understand whether an historic charge, even with decades of no further offending, was serious or not.

The first Spent Convictions Act assisted with these situations while also establishing a number of sensible exclusions. A spent conviction does not mean that all records are destroyed or that they can never be accessed. If a person was being considered for work in security agencies, the police, corrections or the judiciary, then a full record of offending could be disclosed, regardless of how old or how minor the offence was.

Under the former Labor government, amendments were then passed in 2012 and 2013, including the capacity for certain other offences to be spent. These changes allowed people to apply to a magistrate for other offences to be spent if they met specific eligibility conditions in addition to a period of no offending. The new bill seeks to expand on the work that was undertaken in 2012 and 2013 and focuses specifically on historic sex offences.

The government's proposed additions to the Spent Convictions Act focus on actions that are no longer considered crimes, and rightfully so. These include certain provisions and offences that existed under the Criminal Law Consolidation Act 1935 and prior to 1972 and between 1972 and 1975. This was the period prior to the partial and then complete decriminalisation of homosexuality in South Australia. The bill also deals specifically with acts of public indecency. The bill adds a new definition of 'prescribed public decency offence', being an offence against public decency or morality by which homosexual behaviour could be punished.

The public decency elements are intended to capture low-level public decency offences, such as public displays of affection, but not overtly sexual activity, between men. In addition to the new offences, the bill also expands the list of parties that may apply to the court for a conviction to be spent and also allows for applications on behalf of deceased persons. This is an important provision, noting that many people who were affected by the laws 50, 60 or 70 years ago are now elderly or have passed away. The bill allows people, such as a partner, child or any person approved by a magistrate, to make an application on behalf of their loved one.

Finally, the bill amends existing section 8A regarding spent conviction for an eligible sex offence. This change means that a judge must, rather than may, make an order for a spent conviction if an application meets the relevant criteria. The opposition clearly supports these provisions in terms of updating the Spent Convictions Act. These offences were previously offences in our state. They were previously offences that our forebears, members of parliament in this house, believed were offences that so gravely offended the state and offended decency that they should be treated as criminal matters. They were wrong. They were wrong.

We need to make sure that our law, as has obviously happened over the past 50 years, removes those offences from the statute book, making our society fairer and removing this clear discrimination that existed, and that, for those people who were caught up in them, these offences do not last a single day longer on their public record, on their criminal record, as should be the case.

As was said, these are largely historical offences and it would be well over 50 years since many of them were put in place. However, they do mean a lot to those people to make sure that these records are wiped clean, to make sure that these so-called offences at the time, which upset none of our modern standards of behaviour, should not be there for one minute longer.

We wholeheartedly support this legislation to amend the Spent Convictions Act. It builds on the work Bob Such brought to this parliament. We thank him for his perseverance in terms of pushing this matter and pushing the previous government to introduce the act, and later amend the act, and now the current government to push it even further as well. This has the support of the opposition.

Ms BEDFORD (Florey) (12:54): I just have a brief addition to that and commend the government for bringing this matter before the parliament. I have supported legal and social equality for LGBTIQ South Australians over the course of my parliamentary career and it is fair to say we have come a very long way since I first introduced a modest private member's bill to grant same-sex couples equal access to their superannuation nearly two decades ago.

In this bill, I see another important contribution to the continuing evolution of the law to make equality for LGBTIQ South Australians a practical everyday reality. I have also had a longstanding interest in spent convictions policy and legislation, and I pay tribute to the former Independent member for Fisher, Bob Such—as the member for Kaurna just said—who championed these issues. Indeed, the 2009 act, which this bill amends, was a direct result and is directly modelled upon the bill Bob pursued for so many years.

While this bill before us is particularly focused on offences relating to male homosexuality, which were decriminalised in an Australian first by the Dunstan government nearly half a century ago, the importance of spent convictions legislation is wider than these offences alone. I have been made aware by my constituents of a number of cases where a criminal record for a minor offence, perhaps in adolescence or at a time of vulnerability in a person's life, has pursued a person across the course of their lifetime.

With the increasing rise of criminal record screening for a wide variety of jobs, this has come to adversely affect more and more people. Even after the Spent Convictions Act became law, there was a range of continuing problems with police clearances, including publication of cases where no conviction was recorded, seemingly in breach of the spirit of the law. This was among a number of matters I raised with the then Attorney-General upon review of the act in 2012. Surprisingly, not all my suggestions were taken up, and they remain unaddressed to this day.

Suggestions I made which have not been taken up included allowing the most minor offences to be spent over five years rather than 10 and introducing anti-discrimination protections into the Equal Opportunity Act to make discrimination on the ground of an irrelevant criminal record unlawful. I mention these in passing because I hope they will be matters the current Attorney-General might turn her mind to at a later stage.

Turning to the legislation before us, I am pleased this government is acting upon my suggestion the spent convictions scheme ought to be expanded to cover public indecency and like offences which were often used to police homosexual men in past times. A former constituent of mine, sadly now deceased, found himself pursued for a lifetime for a conviction without penalty for indecent behaviour as a result of skinny-dipping when he was 15. The practical effect of this conviction, which stayed on his record in perpetuity, was to prevent him from becoming a volunteer in his son's scout group.

The scheme in this act will be no comfort to him, but I acknowledge it will help address other unjust convictions of a similar nature, and I commend the government for this initiative. I note the government has included a power in this bill for a next of kin to apply to spend a conviction on behalf of a deceased or incapacitated relative. Given the length of time since homosexuality was decriminalised in this state, this is a good initiative and an improvement to the spent convictions regime under the act.

While I am proud South Australia was the first to decriminalise homosexuality and the first to allow for expungement of historical convictions for homosexuality, this bill is a salutary reminder that practical equality in the law, as well as in society, must be an everyday concern for us as parliamentarians and community leaders. We must never tire in continuing to take steps every day to ensure that the promise of equality is a lived reality for all our citizens. I commend the bill to the house.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (12:58): I thank the member for Kaurna for the indication that the opposition support the bill, and also the member for Florey, who has been an advocate for many years in relation to equality. I note the two matters she raised which she seeks to have included. Firstly, this bill actually abolishes the 10-year rule. The second issue in relation to anti-discrimination law I will have a look at. I suspect that with the abolition that is proposed in this bill it will not be necessary, but I will certainly follow that up to see whether that needs to be considered.

These matters were raised by the Minister for Human Services in her round table with the LGBQT community. They had identified some of the shortcomings of the previous legislation, important as it was, to try to set the agenda. This identified some areas that needed to be dealt with, including the removal of the 10-year crime-free qualification period. I just make that comment in relation to this for the benefit of the member for Florey.

I also confirm that in relation to the additional offences brought within the designated sex-related offences, as proposed in the bill, these cover homosexual offences that existed in the CLCA before the partial decriminalisation in 1972, which were buggery and attempt to commit buggery; committing or being party to the commission of, procuring or attempting to procure the commission of any act of gross indecency by a male person to another male person; and also (c)(ii) to cover the equivalent offences that existed between 1972 and 1975 when homosexuality was completely decriminalised.

These are buggery and attempt to commit buggery, male person committing an act of gross indecency with another male person, procuring or attempting to procure an act of buggery or gross indecency between two other persons, and soliciting with a view to inducing a person to commit an act of buggery or gross indecency in doing so.

Bill read a second time.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (13:00): I move:

That this bill be now read a third time.

Bill read a third time and passed.

Sitting suspended from 13:01 to 14:00.