New Zealand Law Society - Historical homosexual convictions scheme announced

Historical homosexual convictions scheme announced

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Justice Minister Amy Adams says the Government will introduce a new scheme to address historical convictions for homosexual offences.

She says the Government intends to introduce legislation to implement the scheme in the coming months.

People with convictions for specific offences relating to consensual sexual activity between men 16 years and over will be eligible to apply to the Secretary of Justice to have the conviction expunged, an approach consistent with other overseas jurisdictions, such as Australia.

If a person’s application is approved, government records will be amended so the conviction does not appear in criminal history checks and they will be entitled to declare they have no such conviction.

The application process will be free for applicants. Decisions will be made by the Secretary of Justice, without the need for formal court hearings or for applicants to appear in person.

“As there may be instances where the offending involved conduct that is still unlawful today, we can’t apply a broad brush approach to wiping convictions. The scheme will involve a case-by-case approach,” Ms Adams says.

She says that while the Homosexual Law Reform Act 1986 decriminalised consensual sex between men aged 16 and over, convictions for offences before that remain on record and can appear in criminal history checks.

“Although we can never fully undo the impact on the lives of those affected, this new scheme will provide a pathway for their convictions to be expunged. It means people will be treated as if they had never been convicted, and removes the ongoing stigma and prejudice that can arise from convictions for homosexual offences.

“I acknowledge the pain that these New Zealanders have lived with and hope that this will go some way toward addressing that.”

What convictions will qualify?

Information released by Ms Adams on the scheme states that people will be eligible to apply if they were convicted of three specific offences under the Crimes Act 1961: Section 141 (indecency between males), section 142 (sodomy), and section 146 (keeping a place of resort for homosexual acts).

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 means the sexual activity must have been consensual and involved adults 16 years or over.

What will happen to those convictions?

They will be expunged. This means a person's criminal record will be amended to ensure the conviction does 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.

When will the scheme start?

It is anticipated that the scheme will begin in 2018 - as soon as the necessary law changes are in place. The Government intends to introduce a Bill into Parliament before the House rises for the election. The public will have an opportunity to make submissions when the Bill is before a select committee.

How does this compare to other jurisdictions?

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.

Is this like the Clean Slate Act 2007?

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. Also, convictions which are expunged cannot be disclosed for any purpose in New Zealand, while a Clean Slate Act conviction may still be disclosed in certain situations.

How many people will be affected?

It is estimated that around 1,000 people may be eligible to apply under the scheme.

Will there be compensation?

No, the Bill will explicitly rule out compensation.

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