Ms O’CONNOR (Hobart) – Mr President, on behalf of the Greens, I can warmly indicate that we will be supporting the Expungement of Historical Offences Amendment Bill 2024.
Any time we leave this building and we walk across to Salamanca, we walk past a recognition of this island’s dark and damaging history. We walk over the words that are embedded into the sandstone paving: ‘In the wake of your courage, I swim.’ A few steps further on: ‘Forgive me for not holding you in my arms.’ Those artworks that acknowledge the history of this island, and the harm that was done to homosexual men and transgender people, were put in place following the Hobart City Council apology to members of the LGBTIQA+ community in 2008. Well they should have apologised, but I’ll come back to that a little bit later in my speech.
At the outset I acknowledge the victims of a viciously draconian, judgmental and punitive time in Tasmanian history. The trauma of being arrested, charged, sometimes convicted, for the crime of of being who they are ‑ homosexual or ‑ is lifelong. All were affected. Many left the island; some never came back. For some, the suffering caused by exclusion, hatred and vilification at the hands of both the community, in parts ‑ particularly in some parts of Tasmania ‑ and the state was simply too much. I, on behalf of the Greens, extend my condolences to the families of those gay and transgender people who didn’t make it.
Discrimination against minorities causes pain and suffering and trauma at the individual level. It harms the families and the loved ones of those affected, and it corrodes the very wellbeing of a healthy and inclusive society. Mr President, what a long way we have come since the dark days of the latter half of the last century.
I want to also acknowledge the presence in the Council today, and the relentless, passionate advocacy, of Rodney Croome. The first time I became aware of Rodney Croome’s life and struggle was when I arrived here as a journalist in 1989. That was at the very time that the Hobart City Council had told members of the Tasmanian Gay and Lesbian Rights Group that they couldn’t have their stall at Salamanca. What ensued were extraordinary scenes of people being arrested simply for standing up for their rights to be who they are and live free from discrimination and prejudice. From recall, over that period about 130 people were arrested within less than two months. It’s those people in significant part, but not exclusively, to whom we speak today through this amendment bill.
There’s a large body of clippings and information in the Parliamentary Library about some of the history of that time. It’s quite gripping to read through it with a sense of something like disbelief that, as a society, we could respond to people on the basis of their sexuality or gender identity with such violence ‑ and it was violence. We made national and international news. We had massive anti‑gay rallies. A number of members will recall the rallies that were held, particularly in places like Ulverstone on the north‑west coast, where that vile man ‑ whose name slightly escapes me, but it might have been something like Rodney Cooper ‑ had whipped up fear and loathing in the community, mostly towards gay men. As Rodney Croome was quoted at the time in an SBS story – and to acknowledge Rodney’s courage, he went to Ulverstone as a counter‑protest to stand up for his community:
Hundreds of people would go along and listen to hatred and bile about us. I remember hearing those people shouting, ‘Kill them! Kill them!’
Ulverstone at the time, Mr Croome observes, was labelled ‘Australia’s most homophobic town’ in the international press. We were an international embarrassment.
I want to acknowledge at this point because it does need to be said that we are now in a period globally where it is now transgender people who are being targeted, who are having their rights ripped away from them, who are the subject of vilification, hatred and marginalisation, particularly in places like the United Kingdom and the United States. It is a hallmark of fascism to target minorities, and that is what we are seeing in the targeting of transgender people around the world. On behalf of the Greens, I again express our solidarity with our transgender friends, families and loved ones.
Back to the history of this place: in the early 1990s Tasmania’s upper House had rejected legislation to decriminalise homosexuality so Mr Nick Toonen took a case to the United Nations. It was the first such case from Australia and the first case about decriminalisation brought to the UN from anyone in the world. History tells us that the United Nations found in Mr Toonen’s favour.
At the time I was working for the then‑federal attorney‑general, Michael Lavarch, and the justice minister, Duncan Kerr. There came a point of conflict between the Commonwealth and the State of Tasmania: the State of Tasmania at the time digging in, as it did, refusing to acknowledge the UN determination and refusing, effectively, to act to uphold the rights of homosexual men to be treated equally.
In April 1994, when the UN ruled in favour of homosexual people, Mr Croome understood that he needed to persuade Canberra to take action. That’s where Michael Lavarch and Duncan Kerr came in.
I remember arriving with them on the VIP jet in Tasmania as they sought to help the Tasmanian Liberal government understand the reality of the situation that they were in. It was made very clear to the Tasmanian government that if they did not act, the Commonwealth would exercise its external affairs powers, as it did during the Franklin Dam, and make the Tasmanian government react. Quoting again from Rodney in the SBS article:
We asked the federal government to use its powers under the federal Constitution, particularly in terms of observing international treaties, to enact a law that would override the Tasmanian law. That didn’t invalidate the Tasmanian laws completely. The only body that could do that was the High Court. So after the federal law was passed, we went to the High Court.
Again, where would we be today without the tenacity of advocates like Rodney Croome and the Tasmanian Gay and Lesbian Rights Group and Equality Tasmania? In all likelihood we would not be debating this bill. Rodney is quoted as saying:
After that the Tasmanian Government knew the game was up. The Liberal Government at the time allowed a conscience vote and the law was changed.
An interesting factoid: it got through the lower House but only scraped through this Council by one vote. Shortly thereafter, as other honourable members have mentioned, Tasmania then enacted the Anti‑Discrimination Act 1998, one of the first and finest pieces of anti‑discrimination legislation anywhere in the country. In 2001, cross‑dressing, which is the crime that captured transgender people under the Police Offences Act 1935, was repealed from the Police Offences Act. In 2008, the Hobart City Council apologised for the harm and the trauma that it had inflicted on members of Tasmania’s LGBTIQA+ community during those terrible days of the Salamanca protests. To Tasmania’s great credit, we were the first parliament – upper and lower Houses – in 2016 to have passed in‑principle motions to confirm our in‑principle support for marriage equality, and the following year marriage equality became Australian law.
We led the way there again and this whole parliament, at some level understanding that there needed to be an expression of a will to deliver justice, stepped up and said we recognise the rights of same‑sex people to have their love and commitment acknowledged through the sanctity of marriage. We led the nation on that, and for that we should be proud. We are leading the nation today in establishing a redress scheme for people whose historical records are being expunged.
In 2017, the principal act, which we are debating and amending today, came into being. I acknowledge the work on that legislation of a former colleague of many members of this place: the former attorney-general and member for Pembroke, Vanessa Goodwin. It was Vanessa who undertook all the foundational work at a government level to bring to the parliament the Expungement of Historical Offences Act 2017. As the act was going through the parliament, she was watching from home because at that time she was very, very unwell.
It was a deeply moving day when that bill went through the House. Those debates are profound, where everyone agrees that a good thing needs to be done and that justice must be served. It was during the debate on the 2017 bill that parliament officially and formally, and with open hearts on all our behalves, apologised to people who had been harmed by the punitive and regressive laws of Tasmania’s past. An apology is meaningful. It’s also in some ways symbolic. It is what you do with your sorrow for wrong that matters, and parliament passed legislation in 2017 that gave effect to that expression of great sorrow.
Of course, it wasn’t a perfect bill. It obviously needed some amendments and tweaking, and there was also a requirement that there be a review undertaken of the expungement act. That review was undertaken in 2020. I did forget to mention that the Tasmanian parliament also led in 2018 in reforming our birth, deaths, and marriages system that people could have their gender identity correctly conveyed on their birth certificate without the requirement to undergo surgery.
I personally was affected by this because of the difficulties that my beautiful transgender son, Jasper, was having in getting his birth certificate to reflect his identity without having to have highly invasive and challenging surgery for which at the time he was not ready. As a result of the advocacy of community members, Equality Tasmania, and incredible Tasmanian women like Martine Delaney, the fact that we had, with Sue Hickey in the chair, something resembling a minority parliament and we worked really closely with the Labor Party –
Sitting suspended from 1.00 p.m. to 2.30 p.m.
Resumed from above.
[3.02 p.m.]
Ms O’CONNOR (Hobart) – Mr President, before the lunch break, I was talking about the collaborative work that was undertaken in the House of Assembly in 2018, working with advocates for reform, the Labor shadow Justice spokesperson Ella Haddad, and indeed, to be frank, the then Speaker Sue Hickey, without whom we would not have been able to pass those amendments. We made nation-leading changes to strengthen the rights of transgender people, and that day in the lower House and out on the lawns was a very positive and happy day indeed.
We know the Expungement of Historical Offences Act 2017 underwent independent review, and there’s been a number of minor changes made to the act. I want to acknowledge the work of Melanie Bartlett and Taya Ketelaar-Jones, who delivered their recommendations. All recommendations were accepted by government, with the exception of the recommendation to develop a redress scheme.
In the recommendations of the independent review, it noted the 2017 legislation did not provide for any kind of redress for people whose lives were dramatically changed – not in a positive way ‑ as a result of previous, now repealed laws. It precluded a right to compensation.
In the recommendations, it says the Community Legal Centres’ submission noted that although the name of the act refers to the offences as being historical, in reality these laws persisted into the second half of the 1990s and indeed into the the latter part of the 1990s, which is quite recent. It was submitted that the lack of compensation(tbc 3.05)
…significantly undermines the ability of the scheme to achieve its objectives of addressing the legacy of those historic laws.
Similarly, the recommendation says the Equality Tasmania submission referred to the issue of compensation and concluded that compensation would help our expungement legislation achieve its stated goal, and because compensation is ethically important in and of itself. The submission refers to the goal of the legislation, stating:
The stigma of conviction and the damage of subsequent discrimination could be rectified more fully if the state were to provide financial compensation to those affected.
Compensation would obviously help make good the financial losses of those who suffered conviction, stigma and discrimination. On top of this, it would show, more compellingly than anything else, that the state takes its conviction‑related stigma and discrimination against LGBTIQ people very seriously, that this stigma and discrimination have no place in today’s society, and that they must be never permitted again.
It is a matter of record that the government chose not to accept that recommendation and indicated that there was another mechanism to make an ex-gratia payment to a person who’d had their conviction expunged. That’s regrettable, because the evidence was laid out in that review for redress. It’s a compelling case and it was quite miserly and limiting on the part of the government to put forward an amendment bill, which makes a number of important changes to the principal act but that did not contain a redress provision.
That is why the Greens worked with Equality Tasmania, Rodney Croome and other stakeholders in this area to create, with the opportunity that the original amendment bill gave us, a provision to insert a new clause 3A that would create a process for determining appropriate redress payments. It is a fact ‑ and I feel it’s important to put this on the record ‑ that we would not be having this discussion about a redress scheme and amendments to the bill to finesse a redress scheme that is to the satisfaction of the parliament without the advocacy of Equality Tasmania, of course, but without the legislative activism and determination of the Tasmanian Greens. I’m not going to apologise for being annoyed about that this morning, because it is offensive to be written out of the record, or to have an attempt made to write the work of the Greens out of the record. That’s what we heard in the speech that the Leader delivered in this place, and on behalf of the Greens, I won’t have it. It’s mealy‑mouthed and it’s petty to try to pretend that the Greens did not play a significant role in meeting the expectations of advocates for reform, as well as the spirit and intent of that recommendation.
We know that the government was not comfortable with our amendment. They thought that what it would cost, if you like, to establish that independent assessment process which would make a recommendation to the Premier outweighed any benefits that may be delivered. Effectively kicking and screaming because they’d been forced by the Greens, and ultimately by the House, to accept that there would be a redress scheme, the government came back with an amendment to put before this place that provided for miserable, paltry and offensive amounts of compensation as part of a redress scheme. Rightly so, the member for Murchison referred it to the Gender and Equality Committee so that there could be a broader examination of the outstanding question of what is an appropriate redress scheme. What funds, what amounts could possibly be even close to sufficient to acknowledge the state’s wrong? On the one hand, you had an amendment that had been accepted by the House that would allow for an independent process of determining what those redress amounts were. The government wasn’t happy with that, so it came back with small‑change offerings and it is sent off to the Gender and Equality Committee.
I want to thank the honourable member for Murchison and the committee for the work that they undertook and coming back with amounts for redress in a scaled way, depending on whether it was arrest, charge, conviction, that supported, if you like, by Equality Tasmania.
My mother always told me it’s important in life that you give credit where it’s due and that you have the generosity of spirit to do so. I would encourage the government, and some other members of this place, potentially, to explore how much better it feels to have a generosity of spirit. It feels good ‑ it certainly does to me ‑ to be able to point to the work of other people and say, ‘Isn’t that good? We can make it better. Are you open to changes?’ When you have that dialogue in a generosity of spirit, you often have much better and much more broadly accepted results. I want to thank the honourable member for Nelson for acknowledging the work of the Greens in this area.
As a result of the committee’s work, we have redress figures that seem sound and as just as it’s possible for them to be, given the profound damage and trauma that these arrests and charges and convictions caused to our fellow Tasmanians. It’s great that the government has come around and accepted the reality of a redress scheme.
I’m very glad to be supporting this bill and we will support the amendments that will be put forward to replace our 3A amendment to establish the redress scheme. It is a good day, because I think what we’re going to find in here is one of those delightful and too‑rare instances in the parliament where we can all agree that what we’re doing will go some way to repairing some of the damage that was caused by the state. As a result of this bill, once it passes through here amended and goes back to the House so those amendments are approved, there will be a measure of justice, of recognition, of redress and, we can only hope, of healing.
I’m very glad, on behalf of the Greens, to be supporting this bill and the amendment that we’ll see in the Committee stage.
