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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-10-15 Daily Xml
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Bills

Spent Convictions (Decriminalised Offences) Amendment Bill

Introduction and First Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (15:21): Obtained leave to introduce a bill for an act to amend the Spent Convictions Act 2009. Read a first time.

Second Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (15:23): I move:

That this bill be now read a second time.

I am pleased to introduce the Spent Convictions (Decriminalised Offences) Amendment Bill 2020. The bill amends the Spent Convictions Act 2009 to expand and improve the system for spending convictions for historical homosexual offences.

South Australia was the first jurisdiction to introduce a legislative system for removing historic homosexual convictions. The Spent Convictions (Decriminalised Offences) Amendment Act 2013 introduced a new category of spendable offence called a designated sex-related offence (DSRO). A DSRO is an offence involving consensual sexual activity between adults or, in some cases, consensual activity between 16 and 17 year olds.

The application to spend a DSRO is made under section 8A of the act. Section 8A can be used to spend a range of sex offences, including DSROs; however, separate factors apply to the decision to spend a DSRO. The magistrate need only need consider whether the offence meets the criteria to be considered a DSRO and whether the conduct constituting the offence has ceased by operation of law to be an offence. If so satisfied, the magistrate may spend the conviction.

Spending a DSRO gives substantial benefits not given to other spent convictions. Generally, spent convictions can be revealed in a range of circumstances set out in schedule 1 of the act, including in relation to parole proceedings, character tests, screening units and working with children and vulnerable people. By contrast, the schedule 1 exceptions do not apply to a spent DSRO. For all purposes the convicted person must be treated as if the conviction had never occurred. The conviction must not be revealed.

This was a groundbreaking reform at the time; however, a review of the legislation, prompted by our LGBTIQA+ round table in 2019, has revealed some deficiencies in the current regime, and I thank the South Australian Rainbow Advocacy Alliance for prompting us, prior to the election, to make the commitment to have the round table and for their ongoing advocacy on this and a number of issues.

This bill makes numerous changes to make the system fairer and more accessible. The bill removes the requirement for a person to complete a 10-year crime free period before they can have their historical homosexual offences spent. While this test is appropriate for other offences spent under the act, it should not apply to historical homosexual offences. The person should be entitled to have the conviction spent because, simply, it was wrong to convict them in the first place. Their subsequent criminal history is therefore irrelevant. It is demeaning to require them to submit evidence of good behaviour in order to have the conviction spent.

The bill also moves applications to spend DSROs into their own section so that it is no longer dealt with in the same section as non-decriminalised sex offences. The two applications are fundamentally different. Non-decriminalised sex offences will continue to be spendable under section 8A at the discretion of a magistrate if no term of imprisonment was imposed for the offence and if the applicant has completed a crime free qualification period. DSROs will be spent under a new section 8B. Most importantly, spending a conviction under section 8B is not a discretionary exercise. If the criteria under the section are made out, the applicant is entitled to have the conviction spent.

The bill also expands the definition of DSRO, allowing more people to access the system for spending decriminalised sex offences. Under the current definition the sexual activity must have occurred between two adults or near-adults. This definition therefore excludes minors who were victims of what would now be considered grooming. Previously, minors could be convicted of homosexual offending, and they are presently unable to spend the conviction, because the sexual activity was not between adults.

The bill remedies this by adding more classes of offences to the definition of DSRO. The expanded definition covers the specific homosexual sex offences repealed in 1972 and 1975 as well as was their common law equivalents. It also covers attempts to commit homosexual offences and contains a power to prescribe more offences by regulation provided the offences involve consensual sexual activity between persons of the same sex. The key feature of these new categories is that they do not require the parties involved to have been adults.

To ensure that only decriminalised sexual conduct is spent under this section, the bill requires the magistrate to be satisfied that the conduct engaged in by the person or constituting the offence would not, at the time an application is considered, constitute an offence under the law of the state.

To make it clear, if an adult male and a minor were previously convicted of the offence of buggery, both might apply to spend their conviction under section 8B; however, only the minor would meet the test of this conduct no longer constituting an offence. The adult could still be convicted today of unlawful sexual intercourse and therefore would not be entitled to have the conviction spent under section 8B.

The bill also allows for spending homosexuality related offences other than sex offences. In the past, homosexual people would be charged with general offensive behaviour crimes for conduct such as showing affection with a person of the same sex in public or wearing clothing considered inappropriate for their sex. These are not sex offences and therefore can currently be spent automatically after completing the crime free qualification period. However, these spent convictions are still subject to the exceptions in schedule 1 and therefore not properly protected from disclosure.

The bill will introduce a new section 8C to allow persons to apply to have a conviction for a public decency and morality offence spent by order of a magistrate, which will give people who were convicted of these offences enhanced privacy protections. Applicants will be entitled to have the conviction spent if they can show that (1) the person would not have been charged with the offence but for the fact that the conduct was suspected of being, or being connected to, homosexual activity; and (2) the conduct would not, at the time an application is considered, constitute an offence under the law of the state.

This test will allow the magistrate to consider the context and background of the offending, for example, if the charge was offensive behaviour the magistrate will consider whether the conduct would still be considered offensive today. In most cases, it will not, as in contemporary Australian society two men or two women holding hands in public is no longer regarded as offensive or immoral. Once spent by a magistrate's order, these offences will not be subject to the exceptions in schedule 1. Finally—

The PRESIDENT: Take your time.

The Hon. J.M.A. LENSINK: Thank you. Hard to believe some things, Mr President. Finally, the bill provides that specified next of kin or legal representatives may apply to spend the historical homosexual conviction of a deceased or incapacitated person. This amendment follows national best practice; every other jurisdiction allows applications to clear a homosexual offence from the record of a deceased person, and most also allow applications on behalf of incapacitated persons. It can be of great personal comfort for the surviving partner or family to be able to remove the conviction. I commend the bill to members and seek leave to insert the explanation of clauses into Hansard without my reading them.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Spent Convictions Act 2009

4—Amendment of long title

This clause amends the long title of the Act consequential on the amendments contained in the measure.

5—Amendment of section 3—Preliminary

This clause amends the definition of designated sex-related offence to add to the categories of offences that are designated sex-related offences for the purposes of the Act. The proposed additions are:

an offence against section 69, 70 or 71 (other than section 70(1)(b) or (c)) of the Criminal Law Consolidation Act 1935 before its repeal by the Criminal Law Consolidation Act Amendment Act 1972 (No 94 of 1972);

an offence against section 69 (other than section 69(1)(b)(ii) or (iii)) of the Criminal Law Consolidation Act 1935 before its repeal by the Criminal Law (Sexual Offences) Amendment Act 1975 (No 66 of 1975);

an offence against any other provision, prescribed by regulation, that involves consensual sexual activity between persons of the same sex;

an offence against the common law substantially corresponding to an offence referred to above or an offence referred to in paragraph (a);

an offence of attempting, or of conspiracy or incitement, to commit an offence mentioned in a paragraph of the definition of designated sex-related offence.

This clause amends the definition of eligible sex offence to remove the current reference to designated sex-related offences. This amendment is consequential on the inclusion of proposed section 8B in clause 8 under which designated sex-related offences will be separately considered.

This clause inserts a new definition of prescribed public decency offence which means an offence against public decency or morality by which homosexual behaviour could be punished (but does not include a sex offence). This amendment is consequential on the inclusion of proposed section 8C in clause 8.

6—Amendment of section 5—Scope of Act

This clause amends section 5 of the Act consequentially on the amendments proposed in clause 8.

7—Amendment of section 8A—Spent conviction for eligible sex offence

This clause amends section 8A of the Act to remove references to designated sex-related offences which are to be considered under proposed section 8B in clause 8.

8—Insertion of sections 8B and 8C

This clause inserts new sections 8B and 8C.

New section 8B provides for convictions for an offence to be spent on order by a magistrate if the magistrate is satisfied that—

(a) the offence is a designated sex-related offence; and

(b) the conduct engaged in by the convicted person or constituting the offence would not, at the time the application is considered, constitute an offence under the law of the State.

New section 8C provides for convictions for an offence to be spent on order by a magistrate if the magistrate is satisfied that—

(a) the offence is a prescribed public decency offence; and

(b) the convicted person would not have been charged with the offence but for the fact that the conduct engaged in by the person or constituting the offence was suspected of being, or being connected to, homosexual activity; and

(c) the conduct engaged in by the convicted person or constituting the offence would not, at the time the application is considered, constitute an offence under the law of the State.

9—Variation of Schedule 1—Exclusions

This clause amends clause a1 of Schedule 1—

(a) to substitute a reference to section 8A with a reference to 8B consequential to clause 8; and

(b) to provide that where an order is made under new section 8C that a conviction for a prescribed public decency offence is spent, the exclusions set out in Schedule 1 do not apply in respect of the offence.

10—Variation of Schedule 2—Provisions relating to proceedings before a qualified magistrate

This clause amends Schedule 2 of the Act—

(a) to specify the persons who, in addition to a convicted person, may apply for a spent conviction order to be made in respect of a conviction for a designated sex-related offence or a prescribed public decency offence; and

(b) to make other amendments consequential on the measure.

Debate adjourned on motion of Hon. I.K. Hunter.

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