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When gay sex was a crime: campaign to expunge records goes national

Victoria and South Australia will finally expunge those convicted of consensual gay sex. So will other states follow? Crikey intern Broede Carmody examines the roadmap.

Gay sex convictions are set to be abolished beyond Victoria, with New South Wales and Tasmania considering following the state’s example in expunging the record for sexual acts that occurred between consenting men before homosexuality was decriminalised. But advocates and those affected say this is just the first step, and they are calling for an apology.

Gay sex was first decriminalised in South Australia during the mid-1970s, with Victoria passing similar laws soon after in 1981. Tasmania was the last state to remove laws against homosexual sex between men, with decriminalisation occurring there in 1997.

Tom Anderson, a disability worker from Wodonga, was charged under Victoria’s anti-gay sex laws when he was just 14 years old despite being the victim of sexual assault. Although he wasn’t convicted, Anderson says it is important for other states and territories to follow Victoria’s example because there are men across the country who have to live with the pain of their convictions every day of their lives.

It’s a terrible secret to live with,” he told Crikey. “For me, the actions by the police and the legal system had more of a lasting effect on my life than the effects of the abuse. The abuse I came to terms with, but the trail of the legal system has haunted me.”

For Anderson, expunging the records is just a first step. “When the announcement was made on Sunday, it was like a light had been turned on in the darkness of my past. But what I need is the apology and to tell my story to the Governor and Premier. That is my ultimate desire,” he said.

Rodney Croome, the spokesperson for the Tasmanian Gay and Lesbian Rights Group, agrees. “The expungement will make life easier, but of course the impact of the laws went far beyond those men to stigmatise all people in same-sex relationships. An apology is an essential part of this process,” he said.

In Tasmania, the abolishment of gay sex convictions and an apology has support from Labor, the Liberal Party, the Greens and recently reformed Tasmanian branch of the National Party. Croome says this is particularly important because Tasmania only decriminalised gay sex in the late ’90s.

We can fairly confidently predict that there are more men in Tasmania who have convictions than any other state. And of course the convictions make it hard for them to obtain employment, housing, and in some cases it has wrecked their lives.”

While it is impossible to track down exactly how many men were prosecuted under sodomy laws in Australia, Croome says there would be at least 10 who would be alive and of working age in Tasmania today.

I think it is important that the Tasmanian government — whichever political stripe it may be — makes a case to other governments that they follow suit. Particularly Western Australia and Queensland, where these laws survived right up until 1990,” he said.

A spokeswoman for the Western Australian Attorney-General Michael Mischin told Crikey the state did not have any current plans for legislation similar to Victoria’s proposed laws. But she points out that under the Spent Convictions Act 1988, a person in WA can apply to have an offence deemed spent (or ignored). In addition, the law makes discrimination on the basis of a spent conviction illegal.

A law to remove convictions for men engaging in consensual sex was being considered by the Queensland Parliament late last year. But a source close to the issue, who did not wish to be named, told Crikey the proposal seemed to have quietly disappeared since then. He says it’s possible the Queensland government is waiting to make an announcement towards the end of the year, with a state election in mid-2015. The Queensland Attorney-General did not respond to a request for comment prior to deadline.

For someone to apply it is going to cause more mental anguish and anxiety because they have to sit down and put all their facts on paper.”

Queensland is the only state in Australia where the age of consent for heterosexual acts and homosexual acts is still different — 16 and 18 respectively. The age of consent for gay sex was changed in NSW in 2003, and the issue is likely to be addressed when the state drafts its own legislation to expunge gay sex convictions.

In NSW, Attorney-General Greg Smith has signalled his support for such a law. The independent member for Sydney Alex Greenwich has also flagged his intention to introduce a private member’s bill. Speaking to Crikey yesterday, Greenwich, a former gay rights lobbyist, said he was meeting with the Human Rights Law Centre and the NSW Gay and Lesbian Rights Lobby to discuss the bill.

The legislation is not something that is going to be quick and easy,” he said. “It needs to be detailed and comprehensive to do justice to the people who were convicted for loving who they loved.”

Like Rodney Croome, Greenwich believes there should be an apology to those who were convicted of gay sex crimes. He’ll discuss the matter with various interest groups to see what form an apology should take.

Jed Horner, policy officer at the Gay and Lesbian Rights Lobby, says NSW will likely enact similar legislation to Victoria, where men will have to apply to have their records expunged. This is to ensure convictions that would be unlawful today — such as rape or interfering with a minor — are not wiped clean.

Obviously we want to make it easier for people,” he told Crikey. “We don’t want to create further injustice with a long, drawn-out process.”

Tom Anderson has similar concerns. While he understands there has to be a series of checks and balances, he is also worried the application process in Victoria could trigger unnecessary stress. “For someone to apply it is going to cause more mental anguish and anxiety because they have to sit down and put all their facts on paper,” he said.

On Tuesday, the ABC reported that the ACT government had not made a decision regarding the erasure of gay sex convictions; the law against gay sex predates ACT self-government and electronic record-keeping. In a statement, the South Australian Attorney-General John Rau said his state — not Victoria — was the first to address the issue of gay sex convictions prior to decriminalisation:

The Spent Convictions (Decriminalised Offences) Amendment Act 2013 commenced on 22 December 2013, allowing convictions for historical homosexual offences to be spent for all purposes. It is pleasing that other states are now following our lead.”

The spokesperson for the Northern Territory Anti-discrimination Commission did not respond to a request for comment before deadline; however, it is understood the territory is not currently considering legislation to deal with the matter.

5
  • 1
    mikeb
    Posted Friday, 17 January 2014 at 1:56 pm | Permalink

    I don’t believe gay sex should be a crime but also don’t believe laws should be changed retrospectively. If the situation was reversed - e.g. being branded a criminal for something done in the past which was legal then, there’d be justifiable outrage.

  • 2
    AR
    Posted Friday, 17 January 2014 at 3:44 pm | Permalink

    Retrospectivity in Law is a very dangerous concept, as MikeB notes, guns, wife beating, child labour or the current cinema hit “12 Years” being good examples although i would love to see Lyons Tea Rooms (if they still existed) and Jardynes being hit for compensation.
    However, I note that the Public Interest Disclosure (Protection) Bill became law a couple of days ago which must mean that Kessing (Customs/Sydney airport)is due a full pardon and possibly recompense.
    Doubt somehow that he’s holding his breath in expectation.

  • 3
    Mark from Melbourne
    Posted Friday, 17 January 2014 at 10:53 pm | Permalink

    Glib comments…

    Let’s always be prepared as people or as a nation to admit where were wrong and make it right no matter the issue.

  • 4
    drsmithy
    Posted Sunday, 19 January 2014 at 12:11 am | Permalink

    I don’t believe gay sex should be a crime but also don’t believe laws should be changed retrospectively. If the situation was reversed - e.g. being branded a criminal for something done in the past which was legal then, there’d be justifiable outrage.

    That’s because you can’t change something you’ve done. Ergo retrospective law in that sense is harmful.

    You can, however, recognise that the law was wrong in the past. This causes no harm in the present and thus is not a similar scenario at all.

  • 5
    Zarathrusta
    Posted Sunday, 19 January 2014 at 10:51 pm | Permalink

    Re Glib’s comment:

    I don’t think you would ever undo the fact that someone was convicted. However you can and should remove all records of that conviction once you realise it was an unjust law.

    That is any computer search of someones convictions, should not show this “crimes” as spent or expunged, it should return no result at all.

    Continuing to show them up is continuing harm.

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