New Zealand Law Society - NZLS calls for pre-1908 extension of expungement of homosexual offences

NZLS calls for pre-1908 extension of expungement of homosexual offences

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The New Zealand Law Society is recommending an amendment be made to the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill to cover all historical offences.

In June, Justice Minister Amy Adams introduced the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill to Parliament.

The bill provides for historic offences to be expunged if the Secretary for Justice determines that the conviction meets the criteria for expungement.

However, the starting point is 4 August 1908, the date on which the Crimes Act 1908 came into operation. As drafted, any convictions for historical homosexual offences prior to that date will not be eligible for expungement.

In a submission on the bill, the Law Society says one possible argument for the time limit might be that the further back in time one goes, the less likely it is that official records are available or complete.

“But this potential difficulty does not justify a blanket exclusion of earlier offences from the expungement regime. Rather, the adequacy of records is likely to be case-specific. In other words, it is not self-evident that official records are presumptively adequate from 1908 onwards but conclusively inadequate before then. Accordingly, this possible rationale does not explain or justify the Bill's use of an arbitrary 1908 cut-off date.”

The Law Society recommends the solution could be found in a similar bill made across the Tasman.

It notes that in Victoria’s Sentencing Act 1991, a broader definition of "historical homosexual offence" applies, which includes offences that were “in force at any time”.

“The Victorian legislature's approach to the definition of historical homosexual offence better upholds the principle that laws should apply equally to all, except where objective differences justify differentiation,” says the NZLS.  

“The Victoria approach avoids the possible arbitrary exclusion of convictions that otherwise would justify being expunged, apart from the fact they occurred earlier than the 1908 cut-off date in the New Zealand Bill's definition.”

The Law Society recommends a similar open-ended definition to that used in Victoria should be adopted in the bill, allowing the test for expungement to do the work. Under that test, the question for the Secretary is whether the conduct constituting the offence, if engaged in when the application was made, would not constitute an offence under the laws of New Zealand.