Historical Homosexual Sentencing Convictions Expunged in VIC

Monday 20 October 2014 @ 12.41 p.m. | Legal Research

Victoria's Parliament has become the first Australian jurisdiction, with the passing of the Sentencing Amendment (Historical Homosexual Convictions Expungement) Bill 2014, to erase old criminal convictions of people who were prosecuted for engaging in consenting homosexual sex. They have been closely followed by a bill about to be passed in NSW and the Attorney-General of Queensland has also opened up negotiations to follow suit.

The Victorian Bill

Victoria commenced two bills, each with the same name, however, the bill which is Assembly Initiated has now passed Parliament (as of 15 October 2014). The Sentencing Amendment (Historical Homosexual Convictions Expungement) Bill 2014 seeks to amend the Sentencing Act 1991 to establish a scheme under which convictions for certain offences related to conduct engaged in for the purposes of, or in connection with, sexual activity of a homosexual nature may be expunged.

In the second reading speech, the Attorney General says:

"It is now generally accepted that this consensual sex between adults should never have been a crime. While we cannot turn back the clock and undo what occurred in previous decades, we can act to ensure that Victorians do not have to continue to suffer from the legal consequences of what occurred. This bill establishes a process that will allow people to apply to have historical homosexual convictions expunged. Once expunged, a conviction will be treated at law as if it were never imposed. It will not be released as part of a criminal history check and a person will be protected from ever having to reveal that conviction."

Human Rights Law Centre executive director Hugh de Kretser lobbied for the change:

"What we're seeing with massive increase in criminal record checks is that this has much greater potential for discrimination and stigma than it had, say 20 or 30 years ago when these offences were decriminalised...[People with convictions are] extremely concerned because, for example, their workplaces are for the first time requiring all staff to do criminal record checks."

Homosexual Sentences in Other Jurisdictions

South Australia

South Australia was the first State to develop a scheme which provides for historical gay convictions. South Australia’s Spent Convictions (Decriminalised Offences) Amendment Act 2013 allows those with historical convictions to apply to have them not appear on their record after a number of crime-free years.

New South Wales

New South Wales has also recently followed suit introducing the Criminal Records Amendment (Historical Homosexual Offences) Bill 2014 on the 16 September 2014. This bill was introduced to the Legislative Council on 16 October 2014 and aims to amend the Criminal Records Act 1991 to allow convictions for certain homosexual sexual conduct offences to become extinguished. As stated in the Second Reading Speech:

"The existence of convictions for these historical offences perpetuates the discrimination suffered by these men, despite the discriminatory laws having been repealed. This bill amends the Criminal Records Act 1991 to permit a person convicted of specified offences to apply for the conviction to be extinguished [by the Attorney-General]."


Attorney-General Jarrod Bleijie announced late last week (17 October 2014) that he is "not shutting the door" on expunging the record of people charged and convicted under historic laws which made consensual homosexual acts illegal. He also further stated that Queensland was "happy to look at" following the lead of other jurisdictions, and would welcome submissions on the issue.

A Federal Senate inquiry in 2012 recommended all Australian states and territories look at expunging the record of those caught under the historic laws, which Queensland did not repeal until 1990. In late September 2013, the Queensland government confirmed it was examining the issue, but did not move forward.

With both Victoria and New South Wales now actively working to pardon the convictions, Queensland will be out of step with the east coast if it does not actively work towards moving forward on the issue:

"The fact that Victoria and New South Wales have moved in this direction indicates this should be a matter of priority for Queensland."

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