On 24 November 2014, the Criminal Records Act 1991 (the ‘Act’) was amended to allow historical homosexual offences to be extinguished.
Homosexuality was decriminalised in NSW in 1984, but prior to this time consensual sex between gay men was a criminal act. People with convictions for these historical offences have dealt with the stigma of a criminal conviction for a ‘sex’ offence which can affect employment opportunities, volunteering and travel. These amendments will allow a person with an eligible historical homosexual conviction to apply to the Secretary of the Department of Justice to have the conviction extinguished.
Under the changes made to the Act, the Secretary has the authority to decide that an eligible conviction should be extinguished but only if if he or she is satisfied that the other person involved in the sexual activity consented to the sexual activity and was above the age of consent. The Secretary has powers under the Act to require certain persons or bodies to provide information for the purposes of making a decision under the Act.
Applications may be made to the Department of Justice to have the following offences extinguished:
- Buggery (s79 Crimes Act 1900)
- Attempted Buggery (s80 Crimes Act 1900)
- Indecent Assault on a male (s81 Crimes Act 1900)
- Act of Indecency with another male person (or procuring) (s81A Crimes Act 1900)
- Soliciting or inciting offences under ss79, 81 or 81A of the Crimes Act 1900 (s81B Crimes Act 1900)
- Homosexual intercourse with a male over the relevant age (s 78K Crimes Act 1900)
- Attempt or assault with intent to have homosexual intercourse with a male over the relevant age (s 78L Crimes Act 1900)
- Acts of gross indecency with a male person under 18 (or procures) (s78Q Crimes Act 1900)- but only if the other person was over the relevant age
- Indecent behaviour (s12 Police Offences Act 1901) or behaving in an indecent or offensive manner (s7 Summary Offences Act 1970) if the offence involved:
- Sexual activity with another person of the same sex, or
- Procuring another person of the same sex to engage in sexual activity.
- Exposure or an indecent act committed by an adult (s43(b) Crimes Act 1900), indecent exposure (s11 Summary Offences Act 1970; s78 Police Offences Act 1901) or wilful and obscene exposure (s6 Offences in Public Places Act 1979; s12 Summary Offences Act 1970; s4(2)(d) Vagrancy Act 1902) if the offence involved:
- The offender engaged in a form of sexual activity with a person of the same sex, and
- The offence was not witnessed by anyone except the other person engaged in the sexual activity or a police officer, and
- It was the offender’s first conviction for the offence.