Wednesday 20 September 2017
Hansard of the Legislative Council
Second Reading

Mr FINCH (Rosevears) - Mr President, congratulations to the member for Murchison for the work she has obviously put into this bill brought to us by the Liberal Government.  It is interesting to hear those historical comments, juxtaposed on where we find ourselves in this day and age, with honourable members here hearing those words of our predecessors here and how times have changed.

The member for Murchison mentioned the review.  There is a clause - and members will notice from some of my references that advice has come to me through my legal channels that is similar to the concerns the member for Murchison has.  I will comment briefly on that review process.

Tasmania, as we heard from the member for Murchison, was the last Australian state to throw out the law condemning gay people's right to engage in sexual activity.  We are a small state and sometimes behind.  Is that what we want?  Some of the legal punishments against gay people, not only in Tasmania but elsewhere, can only be described as cruel.  We could go back to Oscar Wilde in Reading Gaol.  It is widely acknowledged Tasmania has been behind in discrimination laws.  Let us change that.  We may be a small state, but we do not need to be backward.  We can at least acknowledge past mistakes by updating our laws, which is what we are doing here.  Let us clean the slate of our mistakes.  Convictions under mistaken and outdated laws must be expunged so I welcome this bill before us in the Legislative Council.  I reflected that Governor Arthur banned fiddle playing and dancing in pubs years ago.  As those are outdated silly laws when we compare them to today's attitudes and activities so are laws against gay people outdated.  Why leave those legal chains around their necks from decades ago?  Come on, Tasmania.  We have to progress into the twenty-first century.

This bill in its current form has those deficiencies highlighted by the member for Murchison.  If the LGBTI community expected this bill would remove all records of convictions for homosexuals, it will be sadly disappointed.  If an application for expungement is granted, the record of conviction will remain in the court records with an appropriate notation beside it.  Other deficiencies in the bill set out the categories of persons who are able to apply to the secretary for an expungement of an historical offence recorded against a deceased person.  It is unlikely relatives of a deceased convicted person would make an application, as many would prefer that conviction to remain swept under the carpet.  The Government is resisting this.  It will be interesting to understand why and I hope that is explored in the review process.  I do not think it is going to be fleshed out here in the second reading or in the Committee stage.

An application for expungement must be accompanied by an authority for the secretary to obtain details of an historical conviction to make what further inquiries the secretary deems appropriate before making their decision.  We can look at clause 8, which states -

The Secretary must not hold an oral hearing for the purpose of determining the application… 

This provision ensures the secretary will only rely on written submissions and examination of documents when making their determination and will not be swayed by oral submissions or emotional displays.  Clause 8(5) provides that -

… the Secretary is to … give each person, who the Secretary believes to have been involved in the conduct constituting an historical offence to which the application relates, a reasonable opportunity to make a submission ... 

This provision means the person with whom the offence took place will have an opportunity to support or object to the granting of an expungement.  If there has been a disconnection with the people, there may still be an application or a lack of expungement.  It would seem expungement places a heavy burden on those who want it.

I expect the statements by the convicted person to the police at their trial, forensic evidence as to their medical or mental condition given at the trial and the investigating police officer's evidence would be relevant. 

Information in the police officer's report, not admissible at the trial, could also be considered by the secretary to be relevant when making their decision.  A determination to expunge a charge requires the data controller to make a notation against the charge to the effect that the charge has been expunged.  There are those cases where the record is still kept.  It is noted that the actual written record of a charge is not erased or otherwise made illegible.
That is certainly interesting to me, and to the person who gave me the advice on this, that while we are talking about expungement, the record still remains.  It is interesting.  I can hear the arguments too about the historical references that need to be made, but that can made in respect of numbers, not necessarily who the person was.  I hope that is explored in that review process, which is not part of this process. 

The idea behind this bill is to be commended, but the bill is not.  As I say, while I am happy to progress this into the Committee stage with the amendments being brought forward by the member for Murchison, I believe we still have work to do on this legislation before it becomes an act and even after that.  It seems that the slate is not to be wiped clean without a lot of hard work, but I support the bill into the Committee stage.