Apology to men convicted of historical homosexual offences
Hon Amy Adams
Minister of Justice
6 July 2017
Apology to men convicted of historical homosexual offences and First Reading of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill
I move, that the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill be now read a first time, I nominate the Justice and Electoral Committee to consider the bill.
I also move that Government notice of motion No 1, that this House apologise to those homosexual New Zealanders who were convicted for consensual adult activity, and recognise the tremendous hurt and suffering those men and their families have gone through, and the continued effects the convictions have had on them, be agreed to.
Today we are putting it on the record that this House deeply regrets the hurt and stigma suffered by the many hundreds of New Zealand men who were turned into criminals by a law that was profoundly wrong. For that, we are sorry.
We are acknowledging that these men should never have been burdened with criminal convictions and we are recognising the continued effects that the convictions have had on their lives and the lives of their families.
New Zealand has a proud reputation for fairness, freedom and diversity. It is unimaginable today that we would criminalise consensual sexual activity between adults.
Almost four years ago this Parliament passed the Marriage (Definition of Marriage) Amendment Act 2013 to allow same-sex couples to legally marry and I was proud to vote in favour of it.
Today is another historic day for the New Zealand gay community and their families, as Parliament formally apologises for the hurt caused by the convictions and takes the first reading of a Bill to expunge those convictions.
It is never too late to apologise. While we cannot ever erase the injustice, this apology is a symbolic but important act that we hope will help address the harm and right this historic wrong.
The Homosexual Law Reform Act 1986 decriminalised sexual conduct between consenting males aged 16 years and older. The right to be free from discrimination on the grounds of sexual orientation was later recognised in the Human Rights Act 1993.
However, convictions for those offences remain on record. This means that they can appear in criminal history checks and those New Zealanders continue to be tainted with the stigma that such convictions carry.
The Bill seeks to address the ongoing stigma, prejudice and other negative effects arising from a conviction for a historical homosexual offence by creating a statutory scheme for a convicted person, or a representative on their behalf if that person is deceased, to apply for the conviction to be expunged.
This is the first expungement scheme ever to be created in New Zealand, reflecting the uniqueness of this situation. I cannot think of any other situation where a Government in this country would seek to rewrite criminal histories based on changes in societal views.
It is clear that the laws under which the men affected were convicted have not represented the views of most New Zealanders for many years and it is right that we now formally recognise that.
While it is impossible to know exact numbers, it is estimated that 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.
The Bill provides that the Secretary for Justice will be the decision maker in expungement applications. The Secretary will determine, on the balance of probabilities, whether the application meets the test for expungement.
If the application is successful, the conviction would not appear on a criminal history check and the person would not be required to disclose information about the expunged conviction for any purpose. It will be as though they were never convicted.
It will be free to apply for an expungement and the test will be that the conduct constituting the offence would not be an offence under today’s law. This test is necessary to ensure that historical convictions are not expunged if the conduct was non-consensual or the parties were not of legal age. In other words, if the behaviour would still be criminal today.
Five historical homosexual offences are covered by the Bill. These include offences under the Crimes Act 1961 that were repealed by the Homosexual Law Reform Act 1986 and their predecessors under the Crimes Act 1908. The offences involve those of indecency between males, sodomy, and keeping place of resort for homosexual acts.
The scheme will be open to applications from people with historical convictions for offences relating to sexual conduct between consenting men. If the person is deceased, a representative such as a family member or partner can make an application on their behalf.
The primary obligation to provide information in support of an application will fall on the applicant, and the Secretary will be able to obtain any further information he or she considers necessary to make a proper assessment of the application. The applicant will not be required to make any appearances in person, nor will the fact of the application be made public to protect the privacy of those involved.
The Bill is modelled on a number of schemes in Australian states, England and Wales. The New Zealand scheme is more closely aligned with those in Australian states where people can apply to have their convictions disregarded.
It would not be appropriate to go further and create a blanket pardon for all historical convictions for homosexual offences. It is possible that people convicted under the repealed offences would have been convicted for conduct which is still illegal today – for example, if the activities concerned were not consensual.
A case-by-case assessment of the facts of each case is therefore necessary to clarify whether the conduct would be lawful under the current law.
The Bill relies on an application by the affected person or their representative because not every convicted person will want an investigation into the history of their conviction. There is a need to respect the privacy of those who choose – for whatever reason – not to pursue the option of having a conviction expunged.
In addition, there would be real limitations on the ability to investigate a case without the co-operation of the affected person as they will often be the primary source of information to the decision-maker.
Let me once again acknowledge the enormous pain that the New Zealanders affected by these convictions have lived with. It is my hope that this Bill, and Parliament’s apology, will go some way toward addressing that.
As well as acting to once and for all remove the taint and label of criminality, we want by these actions to formally acknowledge and record both the hurt and damage caused, and the fact that those convictions should not have occurred.
I commend this Bill to the House.