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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-11-28 Daily Xml
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SPENT CONVICTIONS (DECRIMINALISED OFFENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 26 November 2013.)

The Hon. S.G. WADE (15:36): Thank you, Madam Acting President. It is particularly appropriate on the honourable member's last day that she should preside over the council on the last sitting day of the year.

I rise in relation to the Spent Convictions (Decriminalised Offences) Amendment Bill 2013. On 30 September the Attorney-General introduced the Spent Convictions (Decriminalised Offences) Amendment Bill 2013. The bill proposes to amend 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 of the commonwealth parliament 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 Freedoms Act 2012 in the United Kingdom which enables the Home Secretary, on application, to formally disregard certain convictions for decriminalised consensual sexual offences. The UK provisions, which commenced on 1 October 2012, took the approach of specifying the relevant offences—that is buggery and gross indecency between men—and then allowing the Home Secretary to decide whether the convictions should be disregarded in all circumstances.

While no other Australian jurisdiction appears to have taken specific steps to address the spending of homosexual offences, four jurisdictions already have repealed law provisions in their spent convictions legislation which could be engaged in such circumstances. In that context, I pause to reflect whether in their motion the Senate of the commonwealth parliament were anticipating that those jurisdictions would take action. Why I say that is that the motion does say that it calls on all Australian states to enact legislation that expressly purges convictions imposed on people. Suffice to say, it may well be that the Senate's view is that the general repealed law provisions are not adequate in the context of these particular offences.

I raise that point merely because there are so many jurisdictions that have relevant repealed law provisions and the appeal from the Australian Senate was on 'all Australian states and territories' and, as I said, uses the term 'expressly'. Be that as it may, far be it from me to try to comprehend the mind of the Australian Senate.

The legislation of four jurisdictions, that is, the ACT, New South Wales, Tasmania and the Territory, provide in broad terms that a conviction for an offence of a kind that has ceased by operation of the law to be an offence is spent when the offence ceased to be an offence, but 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 on application only approach to spent convictions, and Victoria has no spent convictions legislation at all.

So, back to the bill before this parliament. This bill would make amendments to the Spent Convictions Act to allow convictions for homosexual acts to be spent. Under the act, certain criminal offences automatically become spent for most purposes after a qualification period of 10 years, provided the individual has not been convicted of any further offences other than a minor offence in which there was no penalty or the only penalty was a fine not exceeding $500.

Under the act, there are some offences that can never be spent. The effect of the act is that a sex offence can only be spent if upon conviction the penalty did not include imprisonment, whether suspended or not, and by order of a qualified magistrate considering all the circumstances. Under the act, spent convictions need to be disclosed if disclosure is for one of a number of excluded purposes. Excluded purposes include the task of caring for children.

The bill proposes to adapt the spent convictions regime by expanding the definition of sex offence to include a designated sex-related offence that is constituted by consenting adults engaging in or procuring another adult to engage in sexual intercourse or an offence prescribed as a designated sex related offence for the purposes of this definition.

If the bill is enacted, a person who is convicted of an offence related to unspecified consensual sexual activity would be able to apply to a qualified magistrate for their conviction to be spent for all purposes and it would be spent if the qualified magistrate finds that an offence is a designated sex related offence and the offence has ceased, by operation of law, to be an offence. The offence could be spent even if they received a sentence of imprisonment. Any term of imprisonment bars convictions for other sexual offences from being spent. Imprisonment of 12 months or more bars other offences.

The definition of 'designated sex-related offence' includes the capacity for offences to be prescribed by regulation. The government would prefer to have a regulation-based capacity to expand the offence category as they work through how to accommodate the convictions of a person who was a minor between 1972 and 1975, a time when two men could legally engage in consensual sex in private only if they were 21 or over. A later bill, passed on 27 August 1975, made South Australia the first Australian state to fully decriminalise homosexuality. As a South Australian Liberal, I would acknowledge the work of the Hon. Murray Hill MLC in that legislative story.

On my reading, designated sex-related offences prescribed by regulation do not need to involve consensual activity. The clarification of consent in proposed section 3(8) is, in my view, ineffective to limit the definition to consensual activity. It may be better incorporated in the magistrate's task in section 8A(c). If in the future other offences involving consensual activity between adults were to be decriminalised convictions for those offences would, without further action, be eligible to be spent. Theoretically, there are a range of offences where that may well be relevant.

Once that conviction is spent, either automatically or for an eligible sex offence by order of a qualified magistrate, a further application may be made to a qualified magistrate under section 13A of the act that the spent conviction need not be disclosed for one of the three excluded purposes. I note that the United Kingdom legislation specifies the relevant offences. The current South Australian act already allows sex offences to be specified by regulation.

The opposition was at a loss to understand why the provisions in relation to 1972 to 1975 could not be included in the legislation. The government provided a copy of the draft regulations and, on that basis, we have drafted amendments to the act which would incorporate that limited area of offence in the legislation itself. I commend the legislation to the house and also seek the support of the council when we consider the amendment during the committee stage.

The Hon. T.A. FRANKS (15:46): I rise very briefly, given not only that this is the last day of sitting in this parliamentary session but that it is getting late in the day. I am very pleased to see this bill before us today. I note that it was only introduced in the other place on 26 October and here we are debating it now.

I note that in 1997, Tasmania became the last state to decriminalise sodomy, and that was 22 years after the lead was set here in South Australia. While homosexual sex is no longer a crime, thousands of criminal convictions are still outstanding across our nation. It is an issue that I am very pleased to see this government take action on, and we welcome this spent convictions legislation before us. Indeed, it is time to wipe the slate clean. These historic convictions for homosexual sex are not appropriate in this day and age, and they must be expunged.

Of course, the most relevant group to have suffered these previous laws and, indeed, to have carried this burden, are older gay men, and I believe that this will be a very welcome move in that community for those men who had consensual sex with other adult men in Australia prior to the time of the decriminalisation of sodomy. With those words, the Greens welcome this and look forward to the speedy passage of this bill through the chamber.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (15:47): There being no further second reading contributions, I thank those members who have made a contribution and who have indicated their support for this bill. The bill makes amendment to the Spent Convictions Act so that historical convictions for offences constituted by previously outlawed homosexual conduct may be spent.

Under our current provisions, some people who have convictions for historical homosexual offences will already be able to apply to a qualified magistrate for their conviction to be spent but only if the sentence received did not include imprisonment. As such, building upon recent reform, the bill introduces a new term 'designated sex-related offence', which is defined as a sex offence which is constituted by consenting adults engaging in, or procuring another adult to engage in, sexual intercourse. A qualified magistrate will be able to order a conviction for a designated sex-related offence as spent if satisfied that the conduct constituting the offence has ceased by operation of law to be an offence.

Under the Spent Convictions Act, a spent conviction is still disclosed for what is referred to as an 'excluded purpose'. A qualified magistrate can also order that a spent conviction not be disclosed for one of three excluded purposes, but not for all of the excluded purposes. Under this bill, however, once spent, the designated sex-related offence constituted by consensual homosexual sex which is no longer an offence is not disclosed for any purpose, including one of the excluded purposes. The intention is that a person is placed in the same position as if the conviction never occurred, as it is most appropriate to do so in these cases. I look forward to the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. S.G. WADE: I move:

Amendment No 1 [Wade–1]—

Page 2, lines 20 and 21—Delete paragraph (b) and substitute:

(b) an offence where—

(i) the offence is constituted by consenting persons of the same sex engaging in sexual intercourse, or another form of sexual activity; and

(ii) at least 1 of them is 16 or 17 years of age (and none of them is younger); and

(iii) their actions would not have constituted an offence if they were not of the same sex; and

(iv) no person engaged in the activity was in a position of authority in relation to another person engaged in the activity;

This relates to the class of young people who were not adults in the period 1972 to 1975. That was a time when two men could legally engage in consensual sex in private in South Australia only if they were 21 or over.

A later bill, passed on 27 August 1975, made South Australia the first state to fully decriminalise homosexuality, but the government did identify in its research on this bill that that was a class of people who would not be adequately catered for by the provisions of the statute. My understanding was that the government was grappling with that issue, and proposed a regulation-based capacity to expand the offence category to accommodate that group of minors between 1972 and 1975.

I know that the Attorney-General does not share our preference—or at least to the same extent—for statute-based rather than regulation-based provisions, but I put the motion before the committee. I understand that the government is favourably disposed.

The Hon. G.E. GAGO: The government does not oppose either of these amendments. Each of the amendments put forward by the Hon. Mr Wade removes the power to prescribe an offence as being a designated sex-related offence and, instead, inserts into the bill a new element into the definition of designated sex-related offence.

The definition the Hon. Mr Wade is inserting by way of his amendment No. 1 is based on the draft regulation provided to the opposition between houses. The change to subclause (8) proposed by the Hon. Mr Wade in amendment No. 2 is also based upon the draft regulation provided to the opposition between houses. On that basis, these amendments reflect the intent the government demonstrated in the draft regulation, and therefore the government is happy for them to go through.

The Hon. S.G. WADE: The minister's comments remind me that, out of respect for the committee, I should have highlighted the fact that this would remove the capacity for the government to add further offences by regulation. I submit to the committee that that is appropriate because in my view there are still offences which involve consensual sexual activity between adults which have not been decriminalised.

The one that comes to mind straightaway is prostitution. This parliament has grappled with sex worker reform in this parliament and has not progressed it. If we were to decriminalise prostitution, in my view we would need to turn our mind to—considering that I believe it would fit into the category of consensual activity between adults—how we would want to deal with spent convictions. It may well be that the parliament takes the view that some prostitution-related offences should be able to be spent and others should not be.

I just make the point that not only are we supporting the government's approach in relation to this group of young people from the 1970s who now, with all due respect, are ageing like I am, but also it does say to the executive that in relation to this area of activity, if there are future laws which do remove offences relating to consensual sexual activity between adults, we would expect future parliaments to actively consider how those offences should be dealt with under the spent convictions legislation.

Amendment carried.

The Hon. S.G. WADE: I move:

Amendment No 2 [Wade–1]—

Page 3, lines 8 to 12—Delete subsection (8) and substitute:

(8) For the purposes of the definition of designated sex-related offence—

(a) a person will not be taken to have engaged in an activity with his or her consent if the person would not be taken to have freely and voluntarily agreed to the activity under section 46 of the Criminal Law Consolidation Act 1935; and

(b) a person is in a position of authority in relation to another person if they would be in a position of authority in relation to the person under section 49(5a) of the Criminal Law Consolidation Act 1935.

The Hon. G.E. GAGO: The government also supports this amendment, and I outlined my reasons when I addressed amendment No. 1.

Amendment carried; clause as amended passed.

Remaining clauses (5 to 7), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (15:57): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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