Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill

  • enacted

Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill

Government Bill

274—2

As reported from the Justice Committee

Commentary

Recommendation

The Justice Committee has examined the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill and recommends that it be passed with the amendments shown.

Introduction

This bill seeks to reduce prejudice, stigma, and all other negative effects arising from a conviction for a historical homosexual offence.

If enacted, the bill would allow a person convicted of a homosexual offence, or their representative, to apply to have the conviction expunged. A successful application for expungement would entitle the convicted person to declare that they have no such conviction under New Zealand law, and the conviction would no longer appear on a criminal history check.

Petition 2014/69 of Wiremu Demchick and 2,111 others

The Petition of Wiremu Demchick and 2,111 others was presented to the House on 6 July 2016. It requests: “That, in the matter of those who were convicted of consensual homosexual acts prior to the Homosexual Law Reform Act 1986, the House, (a) promptly issue an official apology to those convicted, and (b) pass legislation which sets out a process for reversing the convictions of those convicted, both living and deceased, in a manner which upholds the mana and dignity of those convicted.”

The Justice and Electoral Committee of the 51st Parliament was still considering the petition on 28 June 2017 when the bill was introduced to the House. On 6 July 2017, the Government issued a formal apology to all those convicted and referred the bill to the committee. Because the bill addresses the same subject matter as the petition, the committee decided to continue its consideration of the petition alongside the bill. This report is therefore also a report on the petition.

Background to the bill and the petition

Sexual conduct between consenting males aged 16 years and older was not decriminalised until the enactment of the Homosexual Law Reform Act 1986.1 The Human Rights Act 1993 later established the right to be free from discrimination on the basis of homosexual orientation.

There is limited information about how homosexual offences were enforced and prosecuted before 1986. However, records from the Department of Statistics show that between 1965 and 1986 nearly 1,000 men were convicted of indecency between males. Of these men, 138 received a sentence of imprisonment, while others were subject to fines or community-based sentences.

Convictions for an offence that is later decriminalised remain in place. The stigma of a criminal conviction can have lasting social and psychological effects, even where the conviction is concealed under the Criminal Records (Clean Slate) Act 2004. This is particularly the case when a person applies for a job that requires a criminal history check.

Compensation

Clause 22 of the bill stipulates that there would be no entitlement to compensation for those whose convictions were expunged. Several submitters considered that the men convicted should receive compensation for the harm they suffered as a result of their convictions. However, other submitters agreed with the position in the bill.

We are aware that the men convicted of these offences suffered real harm as a result of their convictions, and we acknowledge the concerns raised by submitters. However, compensation goes beyond the purpose of the bill, which is to prevent further negative effects from the stigma of a conviction.

Nothing in the bill prevents a person being entitled to compensation in respect of anything that occurred while the person was serving a sentence or complying with an order or direction.

Recommended amendments

The rest of this commentary covers the main amendments we recommend to the bill. It does not cover minor or technical amendments.

Examples illustrating the operation of the bill

As an appendix to this commentary, we have included examples to illustrate how the bill would work in particular circumstances.

Interpretation

Criminal record

Clause 4 is the interpretation clause. It defines “criminal record” as any official record relating to the conviction that is kept by or on behalf of the Crown about the charges, the conviction, the sentences imposed or other dispositions of the case, and the orders imposed.

We recommend amending this definition to replace “official record” with “public record”. This would align the definition with section 4 of the Public Records Act 2005. We are satisfied that this change would not affect the scope or operation of the bill. Clause 23 and Schedule 2 make similar related amendments to the Clean Slate Act.

Expunged conviction

We recommend amending the definition of “expunged conviction” so that it includes “in section 9, any criminal record of a conviction of that kind”. This would complement the suggested amendment to clause 9, as discussed below.

General effects of expungement

The general effects of expungement for overseas jurisdictions

We considered whether an expunged conviction would have to be disclosed when travelling to overseas jurisdictions. Ideally, a conviction expunged under New Zealand law should no longer exist for any purpose other than official recordkeeping, and therefore should not have to be disclosed to an overseas jurisdiction.

We were advised that the requirement for disclosure to overseas jurisdictions would depend on the wording of the request. For example, if an official or a convicted person was asked to provide a criminal history record, the expunged conviction would not be included in that record.

The general effects of expungement in New Zealand

Clause 9 sets out the general effects of expungement, which include that the person with the expunged conviction does not have to disclose the expunged conviction. The conviction will be removed from their criminal history check for any purpose in New Zealand.

We are recommending the following amendments to clause 9 to clarify the general effects of expungement:

  • Removing the word “only” from the phrase “for the purposes only of the laws of New Zealand” in clause 9(1) because it suggests that New Zealand expungement cannot be recognised in overseas countries.

  • Adding sub-headings to explicitly state the general effects of expungement.

  • Explicitly stating that expungement of a conviction does not authorise or require the destruction of any criminal records of the expunged conviction.

  • Replacing “any criminal record of expunged conviction” with “any expunged conviction” to better reflect that expunged convictions should not be taken into account when considering a person for employment.

Duties of departments and agencies that hold criminal records

We recommend amending clause 11 to make clear that the duties imposed would only apply to the chief executive of the “controlling public office” (as defined in the Public Records Act) that controls a particular record.2

Effect of expungement on disclosure and use of criminal records

We recommend amending clause 12 to confirm that the disclosure and use restrictions under this clause would apply to the controlling public office, rather than to Archives New Zealand.

Offence to disclose unlawfully information required to be concealed

Under clause 13, a person who has access to criminal records would commit an offence if they knowingly or recklessly disclosed the criminal record, or information about the criminal record, of an expunged conviction. We recommend inserting clause 13(1A) to clarify that the offence would apply only to officials who have access to official records in an official capacity, rather than to any person with personal knowledge of the conviction.

Exception if the convicted person has given written consent or if the disclosure is otherwise authorised by law

Clause 13(2) sets out two exceptions to the offence in clause 13(1): if the convicted person has given written consent to disclosure, or if the disclosure is otherwise authorised by law.

These exceptions are intended to allow a convicted person control over access to their own criminal record. However, we consider that they are problematic because many job applications include a general “tick box” to allow a criminal history check. This could be taken as consent to disclosure of the expunged conviction even if it was not relevant to the job. Further, it is possible that future legislation could include a presumption of full disclosure of all convictions.

We therefore recommend removing clause 13(2).

Offence does not prevent anonymised research or publication, or any disclosure necessary for the administration of the bill

Clause 13(3) provides that clause 13(1) would not apply to or prevent any anonymised research or publication about historical offences or expunged convictions, or any disclosure necessary or desirable for the administration of the bill.

We recommend inserting clause 13(3)(aaa) to make it clear that clause 13(1) would not apply to any disclosure or communication of criminal records of the expunged conviction, when the convicted person expressly requests the convicted person’s criminal history, including any expunged conviction of the convicted person, be disclosed directly to the convicted person under the Privacy Act 1993, or any other enactment referred to in section 10(3). This amendment would be consistent with the principle that, where an agency holds personal information about an individual, the individual is entitled to access that information.

We also recommend inserting clause 13(3)(ba) to provide that, if criminal records of the expunged conviction are classified as open access records and are publicly available under the Public Records Act, then clause 13(1) would not apply to any disclosure or communication of those criminal records.

Offence to require or request that individual disregard expungement

The purpose of the bill is to reduce prejudice, stigma, and all other negative effects arising from a conviction for a historical homosexual offence. We are concerned that in some situations, even if a conviction had been successfully expunged, people might still be required to disclose the fact of the conviction. We therefore recommend inserting clause 13A, which would make it an offence to require or request an individual to disregard the effect of expungement under this bill.

Appendix A: Examples of how the bill would work

Clause 5 (Historical homosexual offence defined)

Example—An offence is only a historical homosexual conviction if the offence occurred on or after 4 August 1908, which is the date on which the Crimes Act 1908 came into operation.

Convictions for offences that occurred before this date (that is, offences against an enactment that is part of the laws of New Zealand and is in force on or after 14 January 1840 and before 4 August 1908) thus cannot be expunged under the bill.

A conviction for an offence against section 136 (Unnatural Offence) of the Criminal Code Act 1893, to the extent that the section covers committing buggery with any other male human being, and as in force before 4 August 1908, thus cannot be expunged under the bill.

Clause 9(2) (Criminal history questions are taken not to refer to expunged conviction)

Example—An employer recruiting employees asks the convicted person to disclose the convicted person’s criminal conviction history (full “criminal record”). The question is taken not to refer to any expunged conviction (which, in clause 9, includes any criminal record of a conviction of that kind).

Clause 9(3) (Convicted person is not required to disclose expunged conviction)

Example—An employer recruiting employees asks the convicted person to disclose the convicted person’s criminal conviction history (full “criminal record”). The convicted person is not required to disclose information about any expunged conviction.

Clause 9(4) (Enactments and arrangements do not apply to expunged conviction)

Example—An expunged conviction must not be considered under Part 3 of the Vulnerable Children Act 2014. Part 3 requires safety checking of people employed or engaged in work that involves regular or overnight contact with children, and prohibits specified organisations from employing or engaging as a core worker a person convicted of a specified offence who does not hold an exemption.

Example—An expunged conviction must not be considered under section 9(1)(j) of the Sentencing Act 2002 (which requires the court, in sentencing or otherwise dealing with an offender, to take into account previous convictions of the offender).

Clause 9(5) (Status cannot be refused or revoked on ground of expunged conviction)

Example—Any expunged conviction, or non-disclosure of one, is not a proper ground for refusing to register the convicted person as a teacher under section 353(a) (applicant not of good character) or (e)(i) or (ii) (applicant has specified convictions, without exemptions) of the Education Act 1989.

Clause 12(2) (Effect of expungement on requests to disclose, and use of, criminal records)

Example—An employer recruiting employees asks the office to disclose the convicted person’s criminal record. The office must not disclose the criminal record of an expunged conviction.

Clause 13(3) (Offence to disclose unlawfully information required to be concealed)

Example—An officer, employee, or contractor of the department responsible for the administration of the Public Records Act 2005 discloses or communicates criminal records of expunged convictions when those criminal records are classified as open access records, and made available for inspection by members of the public, publication, or copying, under that Act. The disclosure or communication is not an offence under this clause. However, the criminal records disclosed or communicated still cannot be used contrary to clause 9.

Appendix B

Committee process

The Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill was referred to the Justice and Electoral Committee of the 51st Parliament on 6 July 2017, and reinstated with this committee on 8 November 2017.

The closing date for submissions was 18 August 2017. We received and considered 37 written submissions, and heard evidence from 10 submitters.

The Ministry of Justice and the Department of Internal Affairs provided advice on the bill.

Petition 2014/69 of Wiremu Demchick and 2,111 others was referred to the Justice and Electoral Committee of the 51st Parliament on 6 July 2016, and reinstated with this committee on 8 November 2017.

The committee received 20 written submissions, and heard evidence from 3 submitters. The Ministry of Justice provided advice on the petition.

Committee membership

Raymond Huo (Chairperson)

Hon Amy Adams

Ginny Andersen

Chris Bishop

Andrew Falloon

Matt King

Greg O’Connor

Priyanca Radhakrishnan

1 The Homosexual Law Reform Act repealed sections 140, 141, 142, and 146 of the Crimes Act 1961.

2 Section 4 of the Public Records Act 2005 can be found at http://www.legislation.govt.nz/act/public/2005/0040/31.0/DLM345537.html