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FACT SHEET
Expungement of Historical Offences Bill 2017
In 1997, homosexuality was decriminalised with the repeal of sections 122(a), 122(c) and 123 of
the Criminal Code Act 1924 (the Criminal Code). However, the repeal of these provisions did
not address the implications for those with existing criminal records relating to consensual
homosexual sexual activity.
The Expungement of Historical Offences Bill 2017 (the Bill) provides for a scheme to enable
charges and convictions for historical offences to be expunged. Historical offences include
homosexual offences and cross-dressing offences. Once a charge or conviction has been
expunged, it is taken not to form part of the person’s criminal record.
The key features of the Bill are as follows:
The Bill provides for the expungement of charges and convictions for historical offences.
Historical offence means a homosexual offence or a cross-dressing offence.
A homosexual offence is a sexual offence or a public morality offence or offences of
attempting to commit, or of inciting, instigating, aiding or abetting the commission of a
sexual offence or a public morality offence.
Sexual offence is defined as an offence in force at any time by which sexual activity of a
homosexual nature, whether penetrative or non-penetrative could be punished, whether
or not heterosexual sexual conduct could also be punished by the offence. This would
include the previously repealed provisions of the Criminal Code – sections 122(a), 122(c)
and 123.
A public morality offence is an offence, other than a sexual offence, the essence of which
is the maintenance of public decency and morality and by which homosexual behaviour
could be punished. This is intended to capture other offences that were used to target
homosexual behaviour such as loitering, indecency, and soliciting or importuning for
immoral purposes.
Cross-dressing offence is defined as an offence under section 8(1)(d) of the Police
Offences Act 1935 as in force before 12 April 2001 or an offence of attempting to
commit, or of inciting, instigating, aiding or abetting the commission of a cross-dressing
offence.
An application to have a charge and/or conviction expunged may be made by a person
who was charged with an historical offence (the eligible person), or if that person is
deceased, by various parties including a spouse, child, parent, sibling, niece, nephew or
legal personal representative. An application can be made in respect of multiple charges.
Applications are to be made to the Secretary of the responsible department. The
Secretary must make a determination by deciding whether to expunge a charge or not as
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soon as practicable after receiving an application. The Secretary can delegate his or her
functions or powers under the legislation.
To expunge a charge in relation to a homosexual offence, the Secretary must be satisfied
on reasonable grounds that:
o the charge relates to a homosexual offence;
o the eligible person would not have been charged with the offence but for the fact
that he or she was suspected of having engaged in the conduct constituting the
offence for the purposes of, or in connection with, sexual activity of a homosexual
nature; and
o the conduct constituting the offence would not constitute an offence under the law
of Tasmania if engaged in at the time of making the application. In considering this
test, the Secretary must have regard to whether any person involved in the
conduct consented to the conduct and the ages or respective ages of those
persons at the time of the conduct.
To expunge a charge in relation to a cross-dressing offence, the Secretary must be
satisfied on reasonable grounds that the offence was a cross-dressing offence (i.e., an
offence under the now repealed section 8(1)(d) of the Police Offences Act 1935).
If the Secretary refuses to expunge a charge, then the applicant can apply to the
Magistrates Court (Administrative Appeals) Division for a review of the Secretary’s
decision. If the Secretary decides to expunge a charge, then the other party to the
conduct and/or a data controller can apply for a review of the decision.
If the Secretary decides to expunge a charge, that charge and any conviction in respect of
that charge is expunged at the expiration of 90 days after the date of the decision – this
is to allow for any reviews to be dealt with.
Once a charge and/or conviction has been expunged, the Secretary is to advise the
parties who hold criminal records – Tasmania Police, the courts and the Director of
Public Prosecutions, and the records are to be annotated accordingly. The annotation is
to note that it is an offence to disclose expunged charges and convictions.
The effects of expungement are as follows:
o an expunged charge or conviction is taken not to form part of the person’s official
criminal record and is not required to be disclosed;
o a question about the person’s criminal history, including a question to be answered
under oath in legal proceedings, is taken not to refer to an expunged charge or
conviction;
o a person is not required to disclose his or her expunged charge or conviction to
any other person including when giving evidence in legal proceedings;
o a reference to a charge or conviction in any legislation, agreement or arrangement,
is taken not to refer to an expunged charge or conviction;
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o a reference to a person’s character in any legislation, agreement or arrangement is
not to be taken to allow or require anyone to take account of an expunged charge
or conviction; and
o an expunged charge or conviction, or the non-disclosure of an expunged charge or
conviction is not a proper ground for refusing the person any appointment, office,
status or privilege, revoking any appointment, status or privilege held by the person
or dismissing the person from any office.
There are offences under the Bill for:
o unlawful disclosure of information about a person’s expunged charge or conviction;
o fraudulently or dishonestly obtaining or attempting to obtain information about
another person’s expunged charge or conviction; and
o giving false or misleading information in answering a question, giving information or
providing a document.
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