Dr WOODRUFF (Franklin – Leader of the Greens) – Honourable Deputy Speaker, it is important that we recognise what we are doing today. It is a further step towards rectifying the injustices that occurred to Tasmanians over decades because of the state‑sanctioned criminalisation of people for homosexuality and cross‑dressing. Essentially, criminalising them for being nothing more than their true selves. We have recognised through the last 27 years, which was the end of the criminalisation of homosexuality and cross‑dressing, the end of those crimes, that those crimes were offensive, discriminatory, and harmful.
In 2017 we removed those crimes from the statute. The then premier, Will Hodgman, apologised on behalf of the State of Tasmania in 2017 to all the people whose lives were harmed and for the lost lives that people who were wrongfully convicted of homosexuality and cross‑dressing. Those people’s lives were changed forever. People live with those scars today. Many of those people, in fact, might be listening to this debate tonight. It is an important moment for people because here we are talking about expanding and improving on the expungement legislation that was brought in, in 2017. Many people still live today from the distress and the lost opportunities, and indeed from the decades of public shame and stigma that occurred as a result of those crimes existing and for them either being convicted, charged and found guilty of simply being themselves and expressing themselves, or being caught up in that process by being arrested and locked up.
That is why we are here today, to work on the amendment bill which is before us, which follows the independent review that was done of the 2017 legislation. Our legislation to expunge the crimes of homosexuality and cross‑dressing in 2017 required a three-year review. What we have from the three-year review has been an independent review. I thank and commend the work of Melanie Bartlett and Taya Ketelaar-Jones who did that work in October 2020. That was some time ago. It is well overdue that this matter is before us and that it gets dealt with forthwith.
The independent reviewers made 13 recommendations to improve the legislation and the processes around expungement. Of those 13 recommendations, five of them do not require legislation. The recommendations relate to: streamlining the processes for expungements to occur; supporting applicants through the process; promoting the scheme widely and making it known to more people; and the manner in which documents are disposed of. I refer to documents in relation to historical information about people being charged with the then crimes of homosexuality and cross dressing. We understand that those recommendations have been fully adopted and are being worked on.
I would appreciate the Attorney-General addressing those five recommendations that do not require any legislative reform and giving the House an update on the progress towards those things.
The Greens strongly support the eight recommendations in which the independent reviewer proposed changes to legislation. Seven of those eight recommendations are included in the amendment bill before us here today. The Greens strongly support those seven recommendations and I will make some comments about a number of them.
We welcome the intention to expand the expungement scheme to include offences for which expungement can be sought. Examples might mean offences at the time, such as resisting arrest, and obstructing and assaulting police officers. Broadening the scheme to allow for these types of offences – that were incidental to the crime of the time itself – recognises that the charges would not have been laid except for the fact that the person was being charged in the context of their conduct being of a ‘homosexual nature’, which was the language of the time. They are captured essentially under the then crime of homosexuality.
The independent reviewer made the recommendation because the purpose of the act of expungement was to acknowledge that homosexuality and cross-dressing offences should never have been crimes. Then it follows on from that, in the spirit of the act, any of these charges or convictions would not themselves have arisen except for the existence of the homosexuality and cross-dressing offences in the first place.
That all seems manifestly sensible and obvious to the reasonable person but it is necessary to have the nature of the expungement specifically expanded.
We endorse Equality Tasmania’s recommendation that there be a broader range of incidental offences and records capable of expungement, such as move-on provisions, loitering, intoxication, public annoyance, as well as the police surveillance records. We support Equality Tasmania’s recommendations that records relating to protests seeking to draw attention to Tasmania’s discriminatory homosexual and cross-dressing laws also be capable of expungement.
This is a whole web that we can see here that hovered over people’s lives who for decades were able to be arrested, charged and threatened with being put, if not actually put, in prison for 21 years, simply for the crime of being themselves: of being a homosexual person, of being an LGBTQIA+ person, of being a person who was in public cross‑dressing, offending the moral fabric of the time. It was so wrong, and we are here today to do what we can to unpick the crimes of the past, but, more than that, to bring justice and healing through closure.
I also want to mention the matter of section 15 of the act being amended to provide that the annotation process does not apply to secondary records. It is worth discussing some of the thoughts that people had around this particular recommendation. The reviewers noted that there was a strong argument that annotation on records would not give applicants confidence that their records would truly be disregarded.
Equality Tasmania also questioned whether annotated records were an appropriate method for expunging the records of a prior crime. The reviewers made note that the Anti‑Discrimination Commissioner indicated a preference that records be retained for historic purposes. Equality Tasmania also did not want to support the erasure of records. Here we have an interesting issue at heart of people wanting to remove the evidence, but also not wanting to erase the fact that this was a terrible act of discrimination that occurred in Tasmania’s history.
This then leads us to distinguishing between ordinary records and secondary records, which is what this does. Secondary records are defined in Victoria as:
An official record that is a copy, duplicate or reproduction of, or extract from, another existing official record, irrespective of whether those records are held by the same entity or by different entities. [OK]
For those records, the data controller must either remove the entry, make the entry incapable of being found, or de‑identify the information contained in the entry and destroy any link between it and the information that would identify the person to whom it has referred.
The independent reviewers have recommended that the annotation process does not apply to secondary records. So, we will now, going forward, have a situation where the annotating on records, which many people in the LGBTIQA+ community believe are important to be kept for historical purposes, does occur on primary records, but not on secondary records. That is entirely appropriate and something that the Greens support.
The other matter I want to make note of is recommendation 8, that there be a specific disposal schedule to provide that all records that are collected or created, when an application is made, are disposed of after a period of six months. On the matter of the disposal of records, Attorney-General, could you comment on who would be responsible for doing that work? Which agency would be responsible for doing that work? Would it be the police? In terms of the application, it would be the Department of Justice, I am assuming.
Mr Barnett – Yes.
Dr WOODRUFF – This is for determining an application for expungement: that records from that would be disposed of after six months.
The other matters in here are relatively incidental. The point that is important to make is that they have been widely accepted by the community most affected, the LGBTQIA+ community. Equality Tasmania has made a substantial submission on the matter to members of parliament. I formally thank Rodney Croome and the members of Equality Tasmania who have worked towards this legislation today. We all know of Rodney Croome’s advocacy because we have all been phoned, emailed and spoken to on numerous occasions. It is Rodney’s gentle, persistent and strong advocacy over decades that has been a beacon for the LGBTQIA+ community, not just in Tasmania, but in Australia and indeed around the world.
We are lucky to have a person like this in our community. He is always there reminding us of what we need to do to right injustices of the past, the harms of which still live in the hearts and minds of people who were harmed. We have a responsibility to do what we can to right those wrongs, and to make sure that we have legislation today in our state so that they do not happen again.
Rodney Croome and Equality Tasmania’s comments on this bill were very clear. They support the recommendations in the amendment bill. They strongly call for the government to include recommendation 13, which is not in the bill, which is to have redress for people who were harmed, who live with the impact of what they suffered, and who live with the experiences of being wrongfully convicted. It is hard to imagine what it would be like living in society with the threat of being imprisoned for 21 years if you were found to be living as a homosexual person.
The importance of redress is that it is part of what is required for healing. It is about closing the loop on the injustices that were done, and it is about us as a state fully atoning for the harms and the loss of life; the trauma and the humiliation; the enormous stigma and shame that people live with; and the active discrimination that people experienced and that many feel lives on with them.
I strongly believe that the majority of Tasmanians would agree that a mechanism for redress is the right thing to do and should be included in this bill. I thank members for agreeing to our motion in August to adjourn the parliament so that we could ask the Office of Parliamentary Counsel to prepare some amendments and to bring in an amendment, which I flag now I will bring in during the Committee stage of the bill, to provide for a process to develop redress. This is being carefully considered. I thank the Office of Parliamentary Counsel for their work on it. I have had conversations with members in the Chamber, back and forth, and in fact, I have a slightly amended version to the amendments that we circulated previously. I hope it addresses all the comments, questions and minor concerns that different members had.
It will require the government to establish an independent assessor. That independent assessor will go away and prepare a methodology by which redress can be determined for an individual applicant. It does not prescribe the methodology that will be determined. It leaves that open. There are different models and circumstances to consider in Tasmania. We are a special circumstance – we are not like other jurisdictions because we were the latest in Australia, the most recent, to have continued the crime of homosexuality. So, there are many particularities to Tasmania.
The independent assessor would then provide that information to the government and that information would be tabled in parliament as a disallowable instrument. It would then be available for parliament to consider that methodology before it was finally approved. That would give the process time and independence. It would give members of parliament an opportunity to have a look and to accept or reject the process that has been developed and, once accepted in whatever form, it would become the mechanism by which individual cases of expunged convictions, if they sought compensation, would be able to have compensation. It would determine the level.
That is what I will outline when we go into the Committee stage of the bill.
I again thank members of the LGBTIQA+ community who have shared their stories and experiences of what it was like to live their life until 1997 under the threat of jail, of criminalisation, for being themselves and for expressing themselves in a way that in Tasmania today seems like it was a century ago, not just 27 years, which, in itself, is a very short time in people’s lives. There are people who are still living with that hanging over them – crimes that can be expunged. This is about going the extra step, improving the legislation, and providing a mechanism for address, for compensation that is in line with the precedence that we have already established in Australia. For example, for redress for members of the Stolen Generation and those who were abused in state care, for compensation to victims of crime. There have many ways that the state can seek to atone for wrongs that have occurred. We think this is the right approach.
I look forward to members’ views. I hope we can all agree on that important matter of justice. It would be a very moving day for people who are affected by those crimes in the past and I look forward to members’ comments. We strongly support the amendment bill.
