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.
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:
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.
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.
The Bill sets out the details of the application process. In general terms:
Applications will be treated in confidence and the privacy of applicants and other parties respected.
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.
There are two main differences:
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.
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.
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:
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.