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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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SPENT CONVICTIONS (DECRIMINALISED OFFENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 25 September 2013.)

Mr GARDNER (Morialta) (16:10): It is a pleasure to be able to speak on the—

Members interjecting:

The DEPUTY SPEAKER: Order!

Mr GARDNER: —Spent Convictions (Decriminalised Offences) Amendment Bill. In doing so, I identify that I am not the lead speaker for the opposition on this matter. Tempted as I am to speak for the next three hours, I am also aware that we do have some other matters to attend to. Nevertheless, on 30 September the Attorney-General introduced the Spent Convictions (Decriminalised Offences) Amendment Bill. The bill amends the Spent Convictions Act 2009 to provide that historical convictions for offences constituted by homosexual acts that are no longer criminal offences can be spent.

On 22 November 2012, the Senate resolved to call on all Australian states and territories to enact legislation that expressly purges convictions imposed on people prior to the decriminalisation of homosexual conduct. The Senate motion referred to the Protection of Freedom Act 2012 in the United Kingdom that enables the Home Secretary, on application, to formally disregard certain convictions for decriminalised consensual sex offences. The UK provisions, which commenced on 1 October 2012, took the approach of specifying the relevant offences—buggery and gross indecency between men offences—and then allowing the Home Secretary to decide whether the convictions should be disregarded in all the circumstances.

While no other jurisdiction appears to have taken specific steps to address the spending of homosexual offences, four jurisdictions already have 'repealed laws' provisions in their spent convictions legislation which could be engaged. The legislation of those four jurisdictions (the ACT, NSW, Tasmania and the Northern Territory) provides in broad terms: (1) a conviction for an offence of a kind that has ceased, by operation of law, to be an offence is spent when the offence ceased to be an offence; and (2) only if the offence is prescribed under the regulations to be an offence to which this subsection applies.

South Australia and Queensland do not have relevant provisions, Western Australia has an 'application only' approach to spent convictions, and Victoria has no spent convictions legislation. The bill would make amendments to the Spent Convictions Act to allow convictions for homosexual acts to be spent.

That provides some background to the nature and purpose of the bill, and I will allow the lead speaker to put the opposition's view at greater length than I choose to do so at this time. It has been a pleasure to be able to contribute to the debate on this piece of legislation.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:13): I am so impressed with the contribution made by the member for Morialta that I am almost tempted to make this the briefest contribution I have ever made—but, just in case, I thought I would mention one thing, and that is the question of having a regulatory power in this bill to extend the definition of a designated sex-related offence. I think the core issue is that in providing the relief, which has been ably set out by the member for Morialta of the purpose of this legislation—

The Hon. J.R. Rau: Most ably.

Ms CHAPMAN: Most ably, yes, I should say—in essence, the relief will be granted to those who have had same-sex sexual encounters between consenting adults. The opportunity to expand the definition by regulation may ultimately cover couplings with a party who might be under the age of 18 years. We do not know the answer to that, so we would want to have some assurance in that regard as to how this is to apply outside of what, on the face of it, I think everyone agrees is a historical anomaly on the basis that some might have a record trapped in time and would be seeking to have their history expunged in this way.

We are not objecting to the principle of the legislation, but we do think there needs to be some clarification of definition. Consistent with our time-honoured contribution to this house on other bills, we think the nature of that should be clearly defined in the act, rather than by regulation. The consideration for us is how that might be addressed.

I do not think, in this case, that any draft regulation has been provided on what the definition of a designated sex-regulated offence would be under the prescriptive power that may be foreshadowed. We would be pleased to have that between the houses, as it may resolve the concerns of the opposition. At this stage, we may choose to file an amendment on the matter in another place.

The other matter I will just place on the record is that, because the government has chosen to consider the United Kingdom legislation in the second reading contribution of the Attorney, I ask that it be noted that, whilst the United Kingdom legislation specifies the relevant offences, the current South Australian act already allows sex offences to be specified by regulation and that, by analogy, we should allow designated sex offences to be specified by regulation.

With that small contribution, and the able summary provided by the member for Morialta—an apprentice Attorney, I can see—I indicate that that concludes my remarks.

The Hon. R.B. SUCH (Fisher) (16:17): As members would know, I have been a strong supporter of legislation to cover spent convictions. It took a long time for the first measure to get through the parliament. When I started campaigning, the attorney-general of the day said that it was living a lie, and he did not support any spent convictions provisions whatsoever. Fortunately, we have moved on.

There are some people who say and who have said to me, 'Once a criminal, always a criminal.' I said in response to them and others, 'Haven't you heard about forgiveness and moving on?' I think it is very important that, unless it is a horrendous type of crime, people have the opportunity to have a clean slate, move on in life, and get the monkey off their back.

One issue that came to my attention, and has done so on more than one occasion, is when someone got into trouble with the law in regard to carnal knowledge but then married the young person, and they have been happily married for 40 or 50 years. I do not want to trivialise serious versions of carnal knowledge, but I do not believe it is a prerequisite for a happy 50-year marriage. I do not believe that this bill before us will actually deal with that situation. I think members can appreciate a situation where two people are in love and engage in sexual intercourse, and the female (which I guess it usually is) is under the age of 18; that can result in a conviction.

In many cases, though not in all cases—there can be carnal knowledge which is in a different context—I think we need to be able to consider that situation where it is really a different intention from someone taking advantage of a young person, which I guess the law is trying to protect, but I am not sure from my reading that that matter would be dealt with by this bill. In any event, I welcome this bill and will support it, but I would be interested to know from the Attorney whether carnal knowledge, as I have expressed it in relation to someone who then marries the younger person, would be covered by this bill.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (16:20): Can I thank the contributors to the debate. First of all, as always, the member for Fisher, as we all know, has been a long-time champion for reform in this area and it is pleasing to hear that he acknowledges and accepts that this is a step in the right direction. I will attempt in a moment to address as best I can the specific question that was raised by the honourable member for Fisher.

My special thank you, though, I think has to go to the member for Morialta, who in extremis stepped into the breach, took up the cudgels and produced the most succinct and compelling argument, and, not only that, it had a very soothing effect on the member for Bragg, who afterwards came here in one of the sweetest moods I certainly have ever seen her in.

Mr Gardner: It's all relative to you.

The Hon. J.R. RAU: Certainly relative to me, yes. I take the honourable member's point, that is true. Anyway, I thank the honourable member, and can I encourage the honourable member, if not being the lead speaker in the next few days we have in Attorney-General's matters, could he at least be the non-lead speaker who speaks first, because it has been very—

Ms Chapman: It tempers me.

The Hon. J.R. RAU: It tempers the member for Bragg and her inherent sweet nature bubbles to the service when this occurs. I congratulate the honourable member for that. Of course, the member for Bragg gave a very clever contribution again, highlighting the point that she often makes, which is the issue about regulations. I know that members of the opposition, in particular those in another place, have a particular interest in this topic. So, I will do my best to make some helpful remarks as best I can.

First of all, to deal with the question raised by the member for Fisher, and if I am getting this wrong, those of you sitting over there, just wave or throw a paper jet at me or something so that I can be corrected, alright? The way I read it is basically this: at the moment, the capture of the provision is only consenting adults, so there is no question that a child, whatever the nature of the relationship between the child and the adult, or the child and another child, for that matter, would not be captured by the statutory provision here. So, it would be a—

Ms Chapman interjecting:

The Hon. J.R. RAU: No, I am coming to that. But, in terms of what that captures, I think it is fair to say that, as far as I can tell, and subject to any advice I have to the contrary, we are basically talking about people who have been convicted of homosexual crimes which no longer exist and they were adults at the time, so between consenting adults. That is basically what it does. As I read the proposed part B of that, that is not similarly constrained. In other words, part B does not say an offence between consenting adults proscribed as a designated sex-related offence. My basic statutory interpretation of that would be that it uses different words to achieve a potentially different outcome. In my view it would be—subject to what others might say—potentially possible for another particular offence which involved one or more children which could be the subject of a regulation. Of course that of itself would be capable of being disallowed by parliament. I was just having another thought whilst I was speaking—

Ms Chapman: A drop of wisdom.

The Hon. J.R. RAU: Yes, indeed. During the briefings I believe it was indicated to the member for Bragg that our intention is that the regulations will be drafted to include a sex offence constituted by a 17 year old engaging in consensual sex, either with another 17 year old or an adult. As I understand it, the age of consent in South Australia is 17 and, in some circumstances, 16.

The Hon. R.B. Such interjecting:

The Hon. J.R. RAU: That is in Queensland, is it? It was felt that this was best dealt with by way of regulations to ensure that this provision was properly drafted and of course the regulations would be capable of being disallowed should they be ineffective.

Ms Chapman: Show us a draft.

The Hon. J.R. RAU: Yes, I will undertake to the member for Bragg that between the houses we will attempt to have a draft regulation available for her consideration. In that respect, that partially answers the member for Fisher's question, because if the person who was convicted of a carnal knowledge offence falls into this category—that is, a 17 year old—then it might well be that the regulations are capable of extending that.

Once we start pushing ages younger than that we get into more and more complex legal territory and ethical territory, for that matter. We are attempting to say there is a potential for 17 year olds to be captured by regulations, but we will do our best to make sure that those regulations are provided to the member for Bragg between the houses so that our intention can be plain from the regulations, and hopefully that might in some way assist the matters raised by the member for Fisher.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (16:28): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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