Spent Convictions (Decriminalised Offences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 15 October 2020.)

The Hon. K.J. MAHER (Leader of the Opposition) (16:25): I rise to speak on this bill and indicate that I will be the lead speaker for the opposition. The late member for Fisher, Dr Bob Such, brought legislation to parliament on many occasions to deal with the issue of spent convictions, like a number of other issues he was passionate about. Bills in his name came before the South Australian parliament in 2004, 2006, 2007, 2008 and again in 2009. He was successful in 2009 and this added to his proud legacy in South Australia. The late Dr Such was an important legislator and a local MP who responded to the needs of his community and for many across the state.

The original legislation enabled a system under which minor offences would automatically cease to affect a person after 10 years for adults and five years for juveniles. The ability for convictions to be spent was subject to the person not being found guilty of other offending during the five or 10 year-period. If they did reoffend during the period, the clock was again reset.

The benefits of minor convictions being spent are many. It is not taken into account for a person's criminal history and the person is not required to disclose to other people. It is not taken into account to affect the person's character or fitness for many things. It cannot be the grounds to dismiss a person from a role or to revoke any appointment. These benefits were balanced by a number of sensible exemptions. For example, records were still retained, even though they could not be used in the circumstances described above. These records could be accessed in a range of special circumstances, including inquiries by security agencies or if the person was being considered for work in the police, corrections or judiciary, amongst others.

Under the former Labor government, amendments were passed in 2012 and again in 2013. I will not detail every bit of those reforms, but they included the capacity for certain other offences to be effectively spent. These changes established a new process so that people could apply to a magistrate for consideration of other offences if they met specific eligibility conditions.

The new bill seeks to expand on work that was undertaken in 2012 and 2013. This bill focuses specifically on historic sex offences that are no longer considered crimes and acts of public indecency that would not be criminal today. It focuses on homosexual activity that has since been decriminalised. It also expands the list of parties who may apply to a court for such convictions to be spent.

The bill explicitly focuses on certain offences that existed under the Criminal Law Consolidation Act 1935 prior to 1972 and between 1972 and 1975. With regard to the period before 1972, after which time the partial decriminalisation of homosexuality occurred, specific offences were: buggery and attempt to commit buggery; and committing, being party to the commission of, procuring or attempting to procure the commission of any act of gross indecency by a male person on another male person.

With regard to offences between 1972 and 1975, after the full decriminalisation of homosexuality occurred the specific offences were the same as for the first one: a male person committing acts of indecency with another male person and procurement and soliciting offences that were similar to the first one.

The bill expands the definition of 'designated sex-related offence' to include these historic offences. It also adds a new prescribed public decency offence, being an offence against public decency or morality by which homosexual behaviour in that past era could have been punished. The public decency elements are an attempt to catch low-level public decency offences, such as public displays of affection, but not overt sexual activity.

In view of the expanded definitions of offences that may be spent, the bill amends and inserts various sections. It amends the existing section 8A regarding a 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. It inserts a new section 8B entitled 'Spent convictions for designated sex-related offence', and it also inserts a new section 8C that deals with the aforementioned public decency offences.

These new sections broadly follow the process outlined in section 8A for dealing with relevant applications. Noting the historic nature of offences that will be able to be spent, a number of people who have been convicted are now deceased or in their later years. Importantly, and particularly in reference to this, the bill seeks to expand who may apply to have a conviction spent. The proposed amendment to schedule 2 allows people beyond the convicted person to apply, including a spouse or a partner, an adult child, a guardian, or any other person approved by a magistrate. The same amendment will allow applications on behalf of a deceased person.

For those who suffered under laws that we now rightly see as the product of a less enlightened bygone era, I think this parliament has previously, and should continue, as I do now, to offer our sympathy and apologies. Our society still has a long way to go to achieve justice for many people but this bill is yet another small step for some of those who suffered. I commend this bill to the council and trust it will find a speedy passage through this chamber.

Debate adjourned on motion of Hon. N.J. Centofanti.