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By Craig Young - 8th July 2016

Clearly, I support the provision of retrospective pardons for gay men who were convicted of what are now acts of consensual, legal gay sex under the Crimes Act 1961 before the Homosexual Law Reform Act passed in 1986. But is Justice Minister Amy Adams response that it would be 'too complicated' to sift through the four hundred convictions under the pre-reform Crimes Act convincing?

I've reported on this issue five times over the last three years. The gist of the case is this- before homosexual law reform, Sections 140-142 of the Crimes Act 1961 prohibited gay sex, whether consensual or non-consensual, adult or pedophile sex with a male minor under sixteen. In 1986, the Homosexual Law Reform Act erased consensual gay sex above the age of consent, at sixteen. In 2005, the Criminal Records (Clean Slate) Act was passed; it enables people to ask the Minister of Justice to review specific past cases of 'criminal' conduct which now is not. There are an estimated 400 cases of unresolved Section 140-142 cases awaiting erasure from the public record.

Victoria, New South Wales, the Australian Capital Territory, the United Kingdom, Canada and Germany have all either legislated for specific repeal of historic homosexual 'offences' or have signalled that they intend to do so. I do take the Justice Minister's point that pedophile sex and same-sex rape should not be pardoned and certainly, advocates of the erasure of historic offences are not advocating that should occur. One would also accept that 'indecent exposure' is still illegal under Section 27 of the Summary Offences Act 1981 and Section 152 of the Crimes Act 1961, except where specified otherwise, which means al fresco gay sex would also be an offence in this context.

However, according to the Minister, we are only dealing with an estimated four hundred offences. Surely it would not be a laborious task to delegate the responsibility for sifting through this case law to a Ministry of Justice official, who would adjudicate whether the offence qualified under a specified definition of public pardon. Our community would accept that some of those four hundred might not pass muster. Given that other jurisdictions in the western world and the British Commonwealth have already implemented pardons of pre-reform gay men convicted of what are now consensual adult gay sexual acts within private venues, and that some of the legislatures that have done so are those of centre-right governments like the New South Wales Liberal Party, German Christian Democrats, and British Conservative Party, clearly political philosophy does not provide a barrier in this context. Indeed, like the embrace of marriage equality in New Zealand and the United Kingdom, it would be an opportunity to demonstrate that National and ACT are committed to pluralist liberal democratic values. With the recent resolution of the question of transgender rights in the context of employment law, surely a relatively simple legislative amendment and delegated official task are not beyond Amy Adams' capabilities as Justice Minister?

Recommended:


Victoria: Sentencing Amendment (Historic Homosexual Offences Expungement) Act 2014:http://www.austlii.edu. au/au/legis/vi c/bill/sahceb2014i855/


South Australia: Spent Convictions (Decriminalised Offences) Amendment Act 2013:http://www5.austlii.edu. au /au/legis/sa/bill/ scoab2013488/

Australian Capital Territory: Spent Convictions (Historic Homosexual Offences) Extinguishment Amendment Act 2015:http://www.legislation. act. gov. au/a/2015-45/20151107-62281/ pdf/2015-45.pdf

Disregarding Certain Criminal Convictions: Chapter 4 Part 5 Protection of Freedoms Act 2012: Application Form and Guidance Note for Applicants:https://www.gov. uk/government/uploads/system /uploads/attachment_data/file/ 118140/guidance-application. pdf

John Ibbotson: “Trudeau to urge pardon for man deemed a dangerous sexual offender for being gay in the 1960s”Globe and Mail:27.02.2016:http://www.theglobeandmail. com/news/politics/ottawa-to- consider-pardon-for-gay-men- convicted-under-pre-1969laws/ article28927302/
John Ibbotson: “Liberals gay-pardon decision applauded but obstacles still exist”Globe and Mail:29.02.2016:http://www.theglobeandmail. com/news/politics/liberals- gay-pardon-decision-applauded- but-obstacles-still-exist/ article28944769/
Equal Justice Project: "Cross-Examination: The Persecution Game: Pardoning Historic Convictions for Same-Sex Intercourse" EJP: June 2015:http:// equaljusticeproject. co.nz/2015/06/cross- examination-the-persecution- game-pardoning-historic- convictions-for-same-sex- intercourse/


Germany to wipe historic gay sex convictions: Gaynz.Com: 12.05.2016:http://www.gaynz. com/articles/publish/3/ article_18266.php

Isaac Davidson: "Pardoning men convicted for being gay 'may be too difficult' Radio New Zealand: 06.07.2016:http://www. newstalkzb.co.nz/news/ politics/govt-pardoning-men- convicted-for-being-gay-may- be-too-difficult/





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Craig Young - 8th July 2016