Criminal Law (Historical Convictions Expungement) Bill 2017

 

On Tuesday 10 October 2017, the Queensland Parliament passed The Criminal Law (Historical Convictions Expungement) Bill 2017.  The purpose of the legislation is to expunge historical convictions for eligible homosexual offences prior to the 1991 amendments.

Criminal offences

Consensual adult male homosexual activity ceased to be a criminal offence in Queensland on 19 January 1991, however a number of historical convictions remain on criminal histories.  The Criminal Code and Another Act Amendment Act 1990 repealed offences relating to homosexual activity, namely sections:

  • 208(1) and (3) (Unnatural offences);
  • 209, (Attempt to commit unnatural offences); and
  • 211, (Indecent practices between men).

Anecdotal evidence also suggests that some historical convictions relate to prosecutions using public order offences contained in the now repealed Vagrants, Gaming and Other Offence Act 1931 (Qld) and section 227(1) of the Criminal Code.

Law Reform Commission Report

On 29 November 2016, the QLRC’s report, “Expunging criminal convictions for historical gay sex offences‘  was tabled in the Legislative Assembly. The Report recommended the creation of a new legislative framework to allow for the expungement, on application, of convictions for historical Criminal Code offences from a person’s criminal history in certain circumstances.

Under the legislation, the Director-General of the Department of Justice and Attorney-General will be responsible for deciding applications for expungement. Decisions will also be able to be reviewed by the Queensland Civil and Administrative Tribunal.

Eligible Offence

An eligible offence is:

  1. A criminal code male homosexual offence; or
  2. A public morality offence; or
  3. Another offence prescribed by regulation.

Who may apply

A person who was convicted of, or charged with, an eligible offence before 19 January 1991,  can apply to have records expunged for eligible offences.  If the eligible person died after 19 January 1991, the application may be made by the first of the following who is available—

  1. the personal representative of the eligible person;
  2. a person who was the eligible person’s spouse on the day the eligible person died;
  3. a parent of the eligible person;
  4. an adult child of the eligible person;
  5. an adult sibling of the eligible person;
  6. an adult who was in a close personal relationship with the eligible person immediately before the eligible person died.

Requirements for historical convictions application

The application must be in the approved form and state the following information about each historical convictions to which the application relates:

  1. the date of the historical convictions or charge;
  2. the place and court (if any) where the eligible person was convicted or charged;
  3. the particulars of the offence;
  4. if the eligible person was convicted of the eligible offence—whether the eligible person was convicted on a plea of guilty;
  5. the details of any sentence imposed; and
  6. include the applicant’s consent to the making of inquiries of, and the exchange of information with, each criminal record holder for the purpose of deciding whether to expunge a conviction or charge the subject of the application.

Effect of Expungement

Once the Director-General of the Department of Justice and Attorney-General has expunged the historical convictions it is lawful for the person to claim, on oath or otherwise, including in a proceeding before any court or tribunal, that the person was not convicted of, or charged with, the offence.  The person is not required to disclose information about the conviction or charge to anyone.

For assistance with Applications, Gatenby Criminal Lawyers are able to assist.

Disclaimer

This website contains general information about legal matters.  The information is not advice, and should not be treated as such.  You must not rely on the information on this website as an alternative to legal advice from your lawyer or other professional legal services provider.  You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.

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