Criminal Records Amendment (Historical Homosexual Offences) Bill
(Contribution to Debate, 16 October 2014, Legislative Assembly, NSW Parliament)
I strongly support the Criminal Records Amendment (Historical Homosexual Offences) Bill and congratulate the member for Coogee for bringing this important legislation to the house. I also acknowledge the work of the Honourable Trevor Khan, and the Attorney-General and his staff for their work on this bill, and thank them for consulting with me and key stake holders in delivering this legislation.
The bill creates a process by which people convicted of engaging in now decriminalised homosexual acts can have their convictions extinguished from their records.
Earlier this year the House acknowledged that it was only thirty years since consensual homosexual sex ceased to be a criminal offence in this state.
Criminalisation of homosexual sex was an appalling moral approach to law that passed judgement on the private non-violent relations between consenting adults; institutionalised homophobia, discrimination, violence and abuse; and led to criminal convictions for law abiding persons for being who they are and loving who they love. Those shameful laws protected no one.
Gay men and lesbians protested against hateful laws and social prejudices against them at a 1978 rally which has now become the annual Mardi Gras LGBTI pride event. Back in 1978 police revoked the permission for the rally, broke up the march and arrested participants. Those who were there – “the 78ers” – tell me of shocking police brutality that left permanent psychological scars and added to long term mistrust of police, some of which remains despite massive improvements in police and LGBTI relations.
Even after criminalisation was removed, endemic homophobia and violence continued for over a decade with many gay bashings, hate crimes and murders occurring in Sydney in the 1980s and 90s. At the time, police did not provide a safe place for victims to report crime but instead policing involved entrapment, abuse, victimisation, brutality and cover-ups.
Those homophobic laws and the homophobic community attitudes they encouraged affected the health, mental health, employment prospects and family and community acceptance of gay men, lesbians and bisexual, transgender and intersex people. Many remained in the closet out of fear of conviction and persecution, and this had serious and enduring impacts on their wellbeing.
While there are probably under 100 people who this legislation will directly affect, it is vital to help heal and right our homophobic history for the wider LGBTI community.
South Australia and now Victoria have already enacted legislation to quash past convictions for decriminalised homosexual acts and I am pleased that this legislation will pass in New South Wales with multipartisan support.
The bill would enable those who were convicted of now decriminalised homosexual acts to easily apply to the Secretary of the Department of Justice to extinguish their criminal record.
The secretary needs to be satisfied that the other person involved in the sexual activity consented.
The bill includes safeguards that exclude consent for applicants who provided “special care” to the other person when they were under 18 and over 16 years of age. Special care relationships refer to for example step parents, guardians, foster carers, teachers, health professionals and other institutionalised people of authority. There is also scope to have records reinstated where new evidence arises.
The government will need to ensure that applicants will have access to their relevant records before submitting their applications so that they can lodge an informed submission.
Most applicants, having been convicted and lived in a world that condemns them for who they are will have significant distrust of authority and the process will need to be sensitive to their needs.
I am pleased at the progress the LGBTI community has made since decriminalisation, which is thanks to the hard work and dedication of community activists and their allies in this place.
We have seen equal age of consent, the removal of discrimination in de facto couple laws including workers compensation, superannuation and taxation, and a State based register to protect same sex relationships. Clover Moore’s Homosexual Anti-Vilification Bill made it illegal to incite hatred of lesbians and gay men and empowered the Anti-Discrimination Board to investigate complaints. Her same-sex adoption bill allows same sex couples to adopt their children as a couple, protecting families. This year the ‘gay panic’ defence of provocation was removed. There has been significant progress in health, welfare and policing policy and programs to address homophobia.
However more work is needed to remove all sanctioned discrimination in all areas of the law, particularly in service provision and employment in education programs, disability care and aged care. Loving and committed same sex couples and gender diverse people should be able to marry in Australia – there is strong community support, it is our leaders who are lagging. Just as today we question why there were ever laws that made consensual sex illegal for gay men, we will one day look back and question why loving and committed same-sex couples were ever denied the right to marry the person they love in their home country.
Transgender, intersex and sex and gender diverse people still face legal and social discrimination and I am committed to fighting this.
It is sad that in some parts of the world, including within our region, consensual sex between two men remains a crime. In Papau New Guinea you can be sentenced for up to 14 years and Australia must play a role in ending this appalling discrimination.
Australia’s history of homophobic laws is long and horrific. I would like to acknowledge and thank Peter de Waal for documenting much of this history in his publication “Unfit for Publication” which details all the buggery and sodomy trials from 1727 to 1930. I am honoured to place these documents on the table for members’ consideration and that the New South Wales Parliamentary Library has agreed to my request to accept all three volumes for the benefit of current and future members.
“Unfit for Publication” reports the first documented “sodomy” conviction in Australia of two young sailors: Adraen Spoor and Pieter Engels on the Dutch vessel “Zeewijk” which became stranded on the West Australian coast in 1727. As punishment they were horrifically put in two separate canoes without food or water to be marooned on separate atolls where they were to die. As historian Gary Wotherspoon remarks in the publication “perhaps these young men were the first martyrs of our tribe in this land”.
Mr DeWaal’s partner Peter Bonsall-Boone was arrested for having consensual sex in his youth. Passage of this legislation will not only help remove his conviction, but also send a message to him and other gay men that such convictions should not have occurred in the first place.
Consensual homosexual sex should never have been a crime and I welcome this bill as a strong positive step in righting past wrongs.
I commend the bill.