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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-11-12 Daily Xml
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Spent Convictions (Decriminalised Offences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 10 November 2020.)

The Hon. C. BONAROS (16:27): I rise briefly to speak in support of the bill. It is a very welcome reform of the outdated Spent Convictions Act 2009, and I would like to acknowledge the excellent work of a round table that took place last year in developing the amendments and spurring the government into action. The round table has certainly been the catalyst for this bill in many respects, and I hope they will also be key to a wider suite of spent conviction reforms in the future.

The provisions of this bill are so sensible and overdue that the only thing I think many of us do not understand is why it has taken seven years since the act was last amended to deal with the remaining perverse provisions of the act. I was surprised that there were still so many anachronistic hangovers and deficiencies in that 2009 act that had not been dealt with in 2013 when Designated Sex Related Offences were introduced in what was considered groundbreaking reform at the time.

Egregious provisions, like the requirement for a person to complete a 10-year crime-free period before they can have historical decriminalised homosexual offences spent, are still operative in South Australia. It is entirely logical that conduct that has ceased to be an offence should be an immediate spent conviction. That is not a new idea, but we have been very slow to respond to the adverse impacts that this has had on South Australians.

Of course, a DSRO, or attempted DSRO, should be immediately spent because those offences should never have been convicted in the first place. I am pleased to see that an underaged minor similarly convicted, who has continued to be ostracised and excluded from a huge range of employment and social activities because there was no ability to have their convictions spent, will be able to finally wipe this from their police record. Knowing that this will continue to pop up must have been a heavy burden to carry through life from one's youth. I am pleased that this bill deals with this strange anomaly.

It seems ludicrous to me that persons who have had a conviction for public decency and morality offence also had to complete the 10-year crime-free period, especially since a public decency offence may have been as trivial as wearing clothing or a bathing suit that was deemed offensive. Public decency and morality offences are residual common law offences rarely charged, although I note that the Victorian police charged the Porsche driver involved in an accident with this offence after he recorded a video of a police officer dying without rendering assistance. They have found it difficult to prosecute despite community attitudes that his behaviour offended our community standards and any level of human decency.

I am additionally pleased that South Australians will not only be able to apply to have their own decriminalised conviction spent immediately by a magistrate who can consider if the conduct would still be considered offensive today, but they would also be accorded improved privacy protections. The magistrate will have the task of assessing the offending behaviour based on today's standards.

I note that there is some risk in this but, thankfully, the world has moved on from those dark days, when homosexual people, for instance, were mercilessly persecuted and prosecuted for having loving, caring, intimate relationships, friendships, families and careers that we are all entitled to as human beings. I cannot imagine the fear and trepidation that everyday life must have presented to all LGBTIQ people in those times or the dread that accompanied the knowledge that those homophobic convictions were going to follow them for their entire lives.

Extending all these provisions to deceased and incapacitated persons is putting right what has been an affront and an insult to people's dignity and reputation for far too many years. It upsets me greatly to wonder how many people found these unwarranted slurs a burden too heavy to bear, who lived lives of fear and concealment or shame or affront at having their privacy continually invaded in the way that they would have.

It is appropriate that some non-decriminalised sexual offences will only be spendable at the discretion of the magistrate and that this will require an application to the courts and completion of a crime-free qualification period. The safeguard keeps the bar higher for spending non-decriminalised sexual offences as it should be; that is, they are not covered by the provisions of new section 8B, which do not give a magistrate any discretion. They have been moved to a separate part of the bill to make this distinction very clear. Given that national police checks, working with children checks and other contexts, where the offender's history needs to be disclosed to provide maximum safety to vulnerable people, I am pleased that these offences have more onerous requirements to be spent.

SA-Best has strongly advocated for better working with children and police checks because no-one wants people like Shannon McCoole, for instance, to slip through the system. I am reminded of the repeat sex offenders who have not had the appropriate working with children checks and managed to hide their previous offending and go on to reoffend with impunity in positions of authority, where they had close contact with children, such as volunteering in youth groups or driving school buses. There were media reports of this very thing happening just yesterday. Thank goodness they did not happen in this jurisdiction necessarily, but it is certainly something that we all need to be acutely aware of.

Having a robust national police check and clearance system is critical to community confidence that employees and volunteers are reputable and do not present a risk. That is the key here: they do not present a risk, particularly to our most vulnerable community members. I look forward to asking the minister about the adequacy of this suite of reforms and whether there are any further reforms that may be anticipated, as has occurred in other states. There are, similarly, hidden disadvantaged South Australians who carry a lifelong burden of being unable to spend a trifling without conviction—minor offending, criminal history—who would be looking for similar relief to that provided by this bill today. That is something I would like to ask about.

In some cases in certain occupations, such as when you are applying to be admitted as a barrister and solicitor, for instance, this offending will always be reported on your national police check, and it can prevent you from being considered a fit and proper person. I remember a young law student applying for a position as a first-year lawyer with a state government department. He was horrified to see that his, without conviction, guilty finding for an offence for mistreating a chair at a McDonald's restaurant during schoolies week would appear in every single police check requested for a legal role and that it would prevent him from assuming such roles until the 10 years had expired. He was so disparaged by this that eventually he gave up applying for those legal positions.

As UniSA's Adjunct Professor of Law, Rick Sarre, recently pointed out, a person's arrest, for example, for a small amount of marijuana many years ago, when the penalty was a fine and a good behaviour bond, could prevent even the most accomplished and committed Australian citizen from volunteering for everything from school canteen duty to serving on charity boards or working for Meals on Wheels.

As hundreds of thousands of South Australian baby boomers reach their retirement and have the time, energy and perhaps experience to make valuable contributions in the stretched, and probably overstretched, volunteer sector, these so-called crimes from the past can act as a barrier to their participation. So there is still a serious anomaly here that, even without a conviction and even though the finding of guilt may have been for a very minor transgression or one that is even decriminalised, a person's misstep in a time gone by will remain on their national police check for life. Their character will still be considered suspect, despite what may be decades of positive and productive achievements and contributions.

There was and still is an opportunity here, I think, for the government to more broadly reform the act to ensure that the current system is not eliminating people who may have committed these very minor and now expiable offences—and I think that is really key here—that were committed in different times and under different community standards or are now decriminalised altogether.

The remedy appears very simple on the face of it: all minor offences where no conviction was recorded could be automatically excised from the police check after the 10 years. I suppose the government could have dealt with this, but it has not been dealt with at this point, but I am keen to know that this is something that they are equally eager to address at some point.

The piecemeal approach to these reforms has been frustrating to legislators and practitioners but ultimately to the community. As limited as they are in the context of what I have just described, they are very important reforms in this bill. They are very welcome not only for the reasons I have highlighted but of course for the reasons that my colleagues in this place have highlighted earlier this week.

It is a start, and these reforms are a very good start. I am sure they will bring a collective sigh of relief throughout the entire South Australian community. With those words, I indicate SA-Best's support for the bill and look forward to some further reforms in this space to deal specifically with the sorts of scenarios that I have just outlined.

The Hon. T.A. FRANKS (16:38): I rise today on behalf of the Greens as their gender and sexuality spokesperson to speak briefly in firm support of this bill. This is an important piece of legislation that will make a tangible difference to the lives of many people. The Greens have always stood for these rights, and we know that acceptance, celebration and legal rights for people of diverse sexualities is essential for genuine social justice and equality, so naturally we welcome this bill.

I cannot help note that not only are these amendments overdue but we should not be having to make them in the first place. Making homosexuality illegal was state-sanctioned discrimination, which holds a legacy of some deep distress and significant harm. The public at the time were legitimised in their homophobia because our laws actively facilitated it.

Newspapers would report openly on people who had been prosecuted for homosexual offences, outing and humiliating them. The impact of this has been cumulative and ongoing—people lived their lives making compromises to stay safe, to stay hidden, people who lived in fear, people who were unable to take certain paths in life because of the risk of that exposure—all because our state criminalised people like them out of bigotry, all because of who they might love or be attracted to. Who knows what lives they may have led had they not been told that they were, by their very own nature, illegal and criminal.

Indeed, laws that criminalised homosexual activity were removed a long time ago, but there are still many people living with that criminality and criminal records for crimes that should never have existed. Many people are still living with the memories and experience of the subsequent stigma and alienation that they faced. The stigma of these charges and the convictions that followed have haunted many individuals and have seen them forgo employment and travel opportunities as a result of that criminal record.

While we have taken steps to remedy this, it is still clear that we have further to go. I remember back in 2013 when we first passed legislation that ensured historical convictions for offences constituted by homosexual acts were no longer criminal offences and could be spent. This was the last day of a particular parliamentary session and I remember that we got the legislation quite late in the piece and, from my perspective, it was a very welcome piece of legislation if, even at that time, it was very much overdue. I am only sorry that it was not something that was done sooner.

At the time we were a leading jurisdiction for those historic homosexual convictions to be spent; however, since we passed that legislation we have seen that further reform is still needed. I am glad to see the government bringing it forward following that round table in 2019. In particular, it is good to see that the bill removes the requirement for a person to complete a 10-year crime-free period before they can have that historical homosexual offence spent.

How this ended up in the legislation in the first place is questionable, given its innate inappropriateness. Regardless of what else a person might have done in their life, they deserve to have that conviction spent for something that should not have been an offence in the first place. We have seen some of the other flaws in our legislation come to light following reviews and they are now being fixed in this piece of legislation before us.

As it stands, the current legislation has a definition that excludes minors, some of whom were actually victims of what we would now call grooming. To not only have these convictions on their records but to then be unable to have those convictions spent is hugely distressing, demeaning and immoral. It is heartbreaking to think about what some of these men—and very young men then in particular—have gone through in their time.

These historic offences have caused great harm and, while I know that spent conviction reforms such as these do not make up for the harm done, I do hope that they can bring these men and their families some comfort. In particular, I am glad to see that the amendment bill will allow for their next of kin or legal representatives to apply to spend the historical homosexual conviction of a deceased or incapacitated person.

Finally, it is good to see that other offences, not just those of a sexual nature, will now be able to be spent—people who were convicted for conduct such as showing affection with a person of the same sex in public, or wearing inappropriate clothing for their sex. I would say it is hard to believe that some of these things were still offences in our living memory, but we know that some of these attitudes do persist today, even if they are no longer reflected in our laws.

It may no longer be illegal to hold hands in public but it still can actually be just as dangerous, given the prejudice that these laws gave succour to, and the injustices and indignities that were brought about by these discriminatory laws. They have lingered, stigmatised and affected different parts of people's lives, and today we take another important step into righting those old wrongs. I commend the bill to the council.

The Hon. J.M.A. LENSINK (Minister for Human Services) (16:44): I thank honourable members for their contributions on this important piece of legislation: the Hon. Kyam Maher, the Hon. Connie Bonaros and the Hon. Tammy Franks. I once again acknowledge the advocacy of the SA Rainbow Advocacy Alliance who, through our round table held last year, highlighted that this was an ongoing issue that is a problem for them, among many other issues, which as they have described themselves are hidden to a lot of people in the community but that are of very acute awareness to them. I look forward to the committee stage of the debate.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. C. BONAROS: Just to reiterate the comments I made during my second reading contribution, I am hoping that the minister will be able to give some undertaking on behalf of the Attorney that we will consider the sorts of scenarios that are raised. The throwing the chair in McDonald's that resulted in a conviction which prevented somebody from working until their conviction period had passed has been dealt with, but we then have those very minor issues, things that may now be expiable offences, things that occurred under perhaps very different community standards but remain on a person's national police check.

So it is not so much the conviction being spent, but every time that person goes for a job interview or for volunteering or canteen duty or whatever the case may be this issue continues to appear on their police check and therefore still acts as a barrier to them partaking in certain activities. As I mentioned, we have a lot of baby boomers who potentially have a lot more time on their hands and who, in their younger days, may have partaken in activities like perhaps smoking marijuana or whatever the case may be—

An honourable member: Cannabis.

The Hon. C. BONAROS: —cannabis—that continue to affect their ability to participate in community events and so forth. All I am seeking is some sort of undertaking from the government that when it comes to the police checks as well and the sorts of issues I have outlined we will undertake to have a look at that a little more closely.

The Hon. J.M.A. LENSINK: I thank the honourable member for her questions—her contribution, if you like. Yes, I think we all do appreciate that some of these matters with the benefit of our more advanced way of thinking these days would not have resulted in a conviction in a contemporary sense but may have in the past and that these constant traces to that are an ongoing frustration for people. So, yes, the government is happy to take on board all of those considerations and review any of the matters the honourable member may wish for us to consider as well as others.

Clause passed.

Remaining clauses (2 to 10) and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (16:50): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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