Questions and answers

Why is the Government introducing this scheme?

The Homosexual Law Reform Act 1986 decriminalised homosexual conduct between consenting men.  There is no general rule that a person’s conviction is disregarded because the conduct concerned is no longer an offence.

Allowing historical convictions for homosexual offences to appear on a person’s criminal record history can continue to stigmatise those affected. Additionally, people with such convictions may be required to disclose their conviction for employment matters.

The scheme would provide an opportunity for people to be treated as if they had not been convicted to remove the stigma and prejudice that can arise from convictions for homosexual offences.

Who is eligible to apply under the scheme?

People will be eligible to apply if they were convicted of specific offences under the Crimes Act 1961 relating to sexual activity between males 16 years and over (and the relevant predecessor offences in the Crimes Act 1908) that were decriminalised by the Homosexual Law Reform Act 1986. The offences are:

  • section 141 (indecency between males)
  • section 142 (sodomy)
  • section 146 (keeping place of resort for homosexual acts)
  • section 153 (unnatural offence) Crimes Act 1908 but only for offences committed with any other male human being
  • section 154 (attempt to commit unnatural offence) Crimes Act 1908 but only for offences attempted to be committed with or against any other male human being

The threshold for granting an application would be satisfaction on the balance of probabilities that the conduct in question would no longer constitute a criminal offence – this will generally require an assessment of whether the sexual activity was consensual and involved adults 16 years or over.

Why is the scheme limited to offences repealed under the Homosexual Law Reform Act? What about people who were convicted of other offences because of their homosexuality?

It is possible that homosexual activity was prosecuted under other generic offences, rather than the more specific offences listed above. For example, the offence of disorderly behaviour can cover a range of conduct.

Extending eligibility to people convicted of these offences would considerably increase the complexity of the scheme.  Other offences generally include elements that constitute criminal behaviour beyond the fact that it involved homosexual activity.  The Government’s preference is to have a scheme that is clear to affected individuals and can be administered in a relatively straightforward way.

Individuals whose convictions do not qualify under the new Bill may be eligible to have their convictions concealed under the Clean Slate Act.

What is the process for applying?

The Bill sets out the details of the application process. In general terms:

  • the Secretary for Justice will be responsible for determining applications
  • an applicant will complete an application form including details about their convictions, together with any evidence they wish to submit
  • applications can be made by certain people on behalf of a deceased person
  • where the information provided by the applicant and official government records are insufficient for the Secretary to make a decision, the applicant will be invited to provide further information and evidence
  • the Secretary may take steps to verify information provided by the applicant with third parties, and may make other inquiries into relevant records.

Applications will be treated in confidence and the privacy of applicants and other parties respected.

What does ‘expungement’ mean?

An eligible applicant’s records will be ‘expunged’. This means the conviction will not appear on a criminal history check for any purpose in New Zealand and they will be entitled to declare they have no such conviction.

This is consistent with the approach taken in most comparable overseas jurisdictions.

How does this scheme compare with the Clean Slate Act?

There are two main differences:

  • to be eligible to conceal a conviction under the Clean Slate Act, the person must, among other factors, have been conviction free for seven years and have never been imprisoned, whereas an expungement will be available regardless of subsequent offending and the sentence imposed
  • the scheme will not have the limitations that are included in the Clean Slate Act – if a conviction is expunged it cannot be disclosed for any purpose in NZ, whereas under the Clean Slate Act a conviction may still be disclosed in certain situations (e.g. when a person applies for a job working with children).

How does this scheme compare with what other jurisdictions have done?

The proposed approach is modelled on a number of schemes in Australian states, England and Wales. The New Zealand scheme is more closely aligned with schemes in Australian states where applicants (or family members on behalf of deceased applicants) can apply to have the convictions disregarded.

How many people will this scheme affect?

It’s estimated around 1000 people may be eligible to apply under the scheme. This is based on analysis of conviction data published by the (then) Department of Statistics on people convicted of indecency between males, the most common offence prosecuted between 1965 and 1986. Not all of those people will choose to apply. Some of those convictions may have involved conduct that is still an offence.

Will people be able to apply on someone else’s behalf?

Yes, an eligible person (before that person’s death) or a representative (after the eligible person’s death) may make an application for expungement of a conviction for a historical homosexual offence.

A representative includes:

  • the executor, administrator, or trustee of, acting on behalf of, the estate of the convicted person
  • a spouse, civil union partner, or de facto partner, of the convicted person
  • a parent, sibling, or child, of the convicted person
  • a person who the Secretary has determined can represent the convicted person for an application for expungement of the conviction

Will there be compensation?

No, compensation would go beyond the purpose of introducing an expungement scheme, which is to prevent further negative effects from the stigma of a conviction.

There is no general principle that a person who is convicted of a repealed offence is entitled to compensation on the repeal of the offence. Where a person has been wrongfully convicted and there is evidence of their innocence, there are existing avenues to seek compensation. In this instance, there is no suggestion that convictions in question were wrongfully imposed as they were in accordance with the law at the time.