Dr WOODRUFF (Franklin – Leader of the Greens) – Honourable Speaker, I thank the honourable shadow attorney‑general, Ella Haddad, for giving me a spot in the rotation, because unfortunately I also need to step out at 3.00 p.m.
It is my great pleasure today to recognise, again, what we are doing. We were here last year and it is past time that we finalise this very, very important bill to expunge historical offences and to provide redress for people who are victims of a crime that never should have been. It’s a further step towards rectifying the injustices that occurred to Tasmanians over decades because of state‑sanctioned criminalisation of the people who were being their best selves, living their lives, and were falsely, wrongly criminalised for homosexuality and for crossdressing.
We recognised 28 years ago now, when we ended the criminalisation of homosexuality and crossdressing, that those crimes were offensive, they were discriminatory, they were harmful, they fed prejudice and stigma in the community that people were forced to live with. Often it forced them into completely hiding their true selves, not just from the wider community, but too often from their workplaces, their families and sometimes their best friends ‑ sometimes even partly from themselves. Some people were public, other people were hidden, but whether public or hidden, people suffered by not being able to express themselves.
I want to reflect on some of the other things that have happened in this parliament over the last couple of years, and I feel a great deal of hope and optimism in my heart about the sort of Tasmania that we live in today compared to the Tasmania that finally ended the decriminalisation of homosexuality and crossdressing in 1987.
We have come a long way, and this bill, in formally expunging those offences and in providing redress for people who suffered those crimes, is a very important and significant step along the way where Tasmania now, with this legislation, when it passes both through both Houses of Parliament, will be nation‑leading in providing redress for people who are victims of crime.
It was 2017 when we removed the crimes from the statute and it was the Premier at the time, Will Hodgman, who formally apologised on behalf of the state of Tasmania to everyone whose lives had been harmed. People, I want to remind us all, live in our community with those scars today, and it is those people whom I believe the members speaking in this House are addressing. We hear you. We know that you have suffered. It was unjust. The law at the time represented a position that was offensive, it was harmful and it was wrong. We are here today to do what we can to repair and help the healing from those injustices.
I want to thank Rodney Croome, who’s here in the Chamber today. We all know Rodney. Most of Australia actually knows Rodney, because Rodney has never stopped before those times in 1987. We are all here today with this legislation in very large part because of the ongoing and continued advocacy of Rodney Croome. We really respect and adore him because of the persistence and the grace with which he has gone about advocating for LGBTIQA+ people over all these decades. I also recognise the other people who are here and some others watching online who have played their part in being a voice for many people who have been voiceless because of their fears of prejudice and stigma.
It is important to recognise the lost opportunities that people experienced. It wasn’t just the fear and the stigma, but the life they could have led if they were able to express themselves, able to express the love they had for their partner in public, to their family. The sort of things that we take for granted, like being able to fall in love with somebody, be romantic in public, get married. Those things are a million miles from people’s experience and here we live in an Australia where marriage equality is finally real. It’s hard for us to imagine what it was like, but this is the darkness that many people who were wrongfully convicted of those crimes experienced and still live with.
A three-year independent review was done and I thank the work of Melanie Bartlett and Taya Ketelaar-Jones who completed that work in October 2020. It is now nearly five years on from then and it is long overdue to get some completion on the 13 recommendations they made from that independent review to improve our legislation and the processes around expungement. Of those, five did not require legislation. The recommendations relate to streamlining the process 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 would be disposed of.
I refer to documents in relation to historical information about people being charged with what were then crimes of homosexuality and cross-dressing, because I remember talking about this when the bill was before the House last year and the recommendations have been fully adopted. We talked about them being worked on at the time. Maybe the minister could give us an update on whether all of that work has been completed or not by now.
The Greens strongly support the eight recommendations that are enshrined in this bill from that independent review, in addition to the matter of redress, which I’ will get to. Initially only seven of those recommendations were in the bill, but it was through an amendment by the Greens to this legislation in the House when it came in last year that we have included the eighth recommendation the independent reviewers made, which was to provide redress.
The intention to expand the expungement scheme to include offences for which expungement can be sought is included here. An example of that could mean things like offences such as resisting arrest and obstructing and assaulting police officers. They are now included and the scheme has been broadened to allow for those types of offences that were incidental to the so‑called crime at the time itself, but it is in recognition of the fact 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’. That was the language of the time. They then effectively became captured under the crime of homosexuality. The independent reviewers made that recommendation because the purpose of this expungement legislation is to acknowledge that homosexuality, cross-dressing offences and these related offences should never have been crimes at all.
We endorsed Equality Tasmania’s comments about this area at the time that there should be a broader range of incidental offences and records that are capable of being expunged, including things like move-on provisions, loitering, intoxication and public annoyance, as well as the police surveillance records themselves. They would all be captured. We also support Equality Tasmania’s recommendations that records relating to the involvement of people in protests that sought to draw attention to Tasmania’s discriminatory homosexual and cross-dressing laws should also be capable of being expunged.
There has been a dark cloud that has hovered over people’s lives for decades. People were threatened, arrested and some were charged with crimes that could have resulted in jail for 21 years. Sometimes, of course, the people who were jailed were done so through the notion of it being an offence to the moral fabric of the crime. People who engaged in protests, as people engage in protests today, were standing up against the idea that people couldn’t be their true self.
Section 15 of the act was recommended for being included in this bill by the independent reviewers to be amended so that the annotation process for expungement of records should not apply to secondary records, and it’s worth laying out some of the thoughts people have about that particular recommendation.
The reviewers noted there was a strong argument that annotation, things that were written on the record of a person who’d been charged, would not give applicants confidence that their records would truly be disregarded or expunged. Equality Tasmania asked whether annotated records were an appropriate method for expunging the records of a prior crime and the reviewers noted that the Antidiscrimination Commissioner recorded a preference that annotated records be retained for historical purposes.
This is a really important issue, the erasure of our dark history, and it’s certainly been infamous in other countries where today’s view about past practices that have occurred finds those practises outrageous, impalatable and tries to wipe them from the record. There are clearly arguments either way, but the strong preference is that we should not erase the reality of what happened to people, because that record is a record of pain and suffering and we should all understand our history so that we never repeat it.
There is a question, then, of distinguishing between the ordinary or original records and the secondary records. Victoria defines secondary records as being an official record that is a copy, duplicate or reproduction of or an extract from another existing official record, regardless of whether those records are held by the same entity or by different entities. What would happen for those records is that 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 referred.
As I understand it, going forward we would have a situation where the annotating on records, which many people in the LGBTIQA+ community have stated they believe are important to be kept for historical purposes, would be happening on primary records but not on secondary records. In other words, the secondary records remain but the primary record would be expunged, and that’s something the Greens support.
I want to make a note in relation to recommendation 8 from the independent review, which was that there be a specific disposal schedule to provide that all records that are collected or created when an application is made would be disposed of after six months. We support that.
The other matters in this bill are pretty incidental, other than the matter of redress, which I will come to. The point I want to make in relation to the rest of this bill is that I acknowledge the work of Equality Tasmania and Rodney Croome in their representations around the initial draft before it came to parliament last year and again in the submissions after it came to parliament. Equality Tasmania, representing parts of the LGBTIQA+ community, Rodney and others urged the government to include recommendation 13 of the independent review to provide redress for people who have been harmed. That wasn’t included in the government’s bill when it came to this place last year.
Redress is paramount to provide for justice and for healing. It’s about the state atoning for the harms, loss of lives led, indeed the actual loss of lives of people who took their own life as a result of what happened to them – the trauma, humiliation and shame many people lived with as a result of those laws, as well as the active discrimination people experienced then. For many people who experienced that, it still lives on with them today. On the basis of those views, the Greens introduced an amendment to the bill last year to provide redress for people who were unjustly convicted of those crimes. It was very welcome that members supported those amendments and I thank members for their input into that debate.
What our amendment provided for was an independent assessment process that the government would establish. It would have meant that an independent assessor would have prepared a methodology by which redress could be determined for each individual applicant. Our amendment didn’t prescribe the methodology. It left it to an independent assessor to determine themselves. We noted that there are different models around Australia and different circumstances that could have been included in developing that sort of methodology.
Our proposal was that the independent assessor will then provide a methodology to the government, that information would be tabled in parliament as a disallowable instrument, and then it would be available for parliament to look at and make an assessment of the methodology before it was finally approved. Our amendment was supported by the House and when the bill went to the Legislative Council last year, it was referred to a committee process. In that process, the committee heard submissions, prepared a determination and ultimately proposed an adjusted method which was to set a base of rate scales based on the experiences that had occurred to people who would apply for redress. The amendments to the legislation recommended by the committee did not go through that place before parliament was prorogued for the election. However, I am glad to say they have been adopted in this bill here today.
I thank the Attorney-General for doing that process and that work. That makes this process now more expedient. People have already waited a long time to get the justice I have talked about. It is important that it is in the legislation. We have had a look at the amendments and how they are reflected in the bill. We believe the amendments accurately reflect the committee’s recommendations, and they contain many of the provisions in the Greens’ original amendments.
The rate scales proposed are based on the circumstances of the person who is claiming redress and the proposed amounts for the different categories are enough to be more than tokenistic. They send a message that parliament understands that harm was done and accepts the need for appropriate redress, which is important.
Clause 19C of the bill talks about three categories of redress. The first category is payment of redress for a person who was not convicted but was charged with any of the matters that are now expunged. That person would receive $15,000 with CPI to go on top of that for every year subsequent to the legislation passing.
The second category would be for a person who had been convicted with one of the expunged charges but did not have any court-imposed sanctions regarding that charge. That amount would be $4, 000 for that person and subsequent CPI.
The third category is for a person who had been convicted in respect of cross-dressing or homosexuality and had received at least one court‑imposed sanction. That sanction could have been gaol. It could also have been a range of intensely harmful interventions about trying to change that person and stop them being the person they were. The amount set for that is $75,000.
The Greens support where we have landed. We still think it would have been better and fairer to use an independent methodology, but we recognise that it does send an important message and these amounts are not tokenistic. We also appreciate it wasn’t the preferred approach of the government at the beginning. We commend the Attorney-General for accepting the recommendations and sending a message of support to the affected communities that is broadly presented by the parliament through his inclusion of these amendments in the bill, rather than another member or the Legislative Council having to insert them. That is an important demonstration of a process that is efficient, harmonious and faster.
I thank all the members of the LGBTIQA+ community who shared their stories and experiences of what life was like in Tasmania in those darker times. We all need to remember our history, remind ourselves why we never want to relive it and why we stand together against that sort of discrimination. Every member of our community is valued, every member should feel included and welcome and free to be themself.
I thank the Attorney-General and the staff who have worked on this. It has been quite a long journey. I know that Rodney will be glad to have this out of the way in a timely fashion, because, ever a busy man, more work to do. The Greens strongly support this bill.
