Bill to wipe historical homosexual convictions introduced

Signalled earlier in the year by the Government, Justice Minister Amy Adams has introduced a Bill to Parliament that “will allow men convicted of specific homosexual offences decriminalised by the Homosexual Law Reform Act 1986 to apply to have the convictions wiped from their criminal record”.

This was initiated by a petition presented to MPS last year – so sensible petitions can be effective.

The Criminal Records (of Convictions for Historical Homosexual Offences) Bill was introduced to Parliament today.

“The tremendous hurt and stigma suffered by those who were affected can never be fully undone, but I hope that this Bill will go some way toward addressing that,” says Ms Adams.

“This Bill introduces the first ever expungement scheme in New Zealand.

“Allowing historical convictions for homosexual offences to remain on a person’s criminal record perpetuates the stigma which such convictions carry. A person can be further disadvantaged if they are required to disclose their conviction or it appears on a criminal history check.”

Ms Adams says the scheme will be open to applications from men with convictions for specific offences relating to sexual conduct between consenting men 16 years and over, or by a family member on their behalf if the person is deceased. The application process will be free for applicants.

“The scheme requires case-by-case assessments of the relevant facts to determine whether the conduct a person was charged with is still unlawful today. The decision will be made by the Secretary for Justice, without the need for a court hearing or for applicants to appear in person,” says Ms Adams.

“If a person’s conviction is expunged, the conviction will not appear on a criminal history check for any purpose and they will be entitled to declare they had no such conviction when required to under New Zealand law.”

Copy of the Bill:  www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_74442/criminal-records-expungement-of-convictions-for-historical

It’s taken a long time but it’s good to see this being dealt with. It was abhorrent law in the not very distant past and the least that can be done now is to wipe any convictions.

Some history:

Male homosexual sex became illegal in New Zealand when the country became part of the British Empire in 1840 and adopted English law making male homosexual acts punishable by death.

The Offences Against The Person Act of 1867 changed the penalty of buggery from execution to life imprisonment. In 1893 the law was broadened so that sexual activity between men constituted “sexual assault” even if it was consensual. Penalties included life imprisonment, hard labour and flogging.

Sex between women has never been legally prohibited in New Zealand.

In 1961 the penalties for male homosexual activity were reduced, reflecting changing attitudes towards homosexuality.

In 1968 a petition signed by 75 prominent citizens and calling for legislative change was presented to (and rejected by) parliament.

The Act was introduced by Labour MP Fran Wilde in 1985. Originally, the bill had two parts – one decriminalised male homosexuality, while the other provided anti-discrimination law protections for lesbians and gay men.

The first part passed narrowly (49 Ayes to 44 Noes) on 9 July 1986, after an attempt by opponents to invoke closure and end debate was defeated by one vote the previous week; the bill might have failed if a vote was taken then as several supporters were kept away from Wellington by bad weather. Three National MPs voted for the bill, and other National MPs (including Doug Graham) would have supported the bill if it had been in danger of defeat.

The second part failed, but was incorporated into a supplementary order paper added to the New Zealand Human Rights Act 1993.

https://en.wikipedia.org/wiki/Homosexual_Law_Reform_Act_1986

This is one example of a number of awful laws and prejudices of the not very distance past that have changed significantly in a more tolerant and sensible society.

As a civil society we’re not perfect yet, but this is another good step forward.

Stuff from last year: Homosexual Law Reform 30 years on – what was life like for the gay community pre-1986?

Pardons for historic homosexual convictions

Up until 30 years ago in New Zealand homosexual acts were illegal and men were charged and convicted for them, which were a huge stigma for them. Legal and social sanity eventually prevailed.

The Government is preparing to allow pardons and apologies will be given. Excellent from Amy Adams.

I wonder why this has taken so long.


Historical homosexual convictions eligible to be wiped

The Government will introduce a new scheme to address historical convictions for homosexual offences, Justice Minister Amy Adams has announced.

“While the Homosexual Law Reform Act 1986 decriminalised consensual sex between men aged 16 and over, convictions for those offences remain on record and can appear in criminal history checks,” Ms Adams says.

“Although we can never fully undo the impact on the lives of those affected, this new scheme will provide a pathway for their convictions to be expunged. It means people will be treated as if they had never been convicted, and removes the ongoing stigma and prejudice that can arise from convictions for homosexual offences.

“I acknowledge the pain that these New Zealanders have lived with and hope that this will go some way toward addressing that.”

People with convictions for specific offences relating to consensual sexual activity between men 16 years and over will be eligible to apply to the Secretary of Justice to have the conviction expunged, an approach consistent with other overseas jurisdictions, such as Australia. If a person’s application is approved, government records will be amended so the conviction does not appear in criminal history checks and they will be entitled to declare they have no such conviction.

The application process will be free for applicants. Decisions will be made by the Secretary of Justice, without the need for formal court hearings or for applicants to appear in person.

“As there may be instances where the offending involved conduct that is still unlawful today, we can’t apply a broad brush approach to wiping convictions. The scheme will involve a case-by-case approach,” Ms Adams says.

Ms Adams says the Government intends to introduce legislation to implement the scheme in the coming months.

 

More on family violence proposals

During the week the Government announced proposals aimed at addressing and reducing family violence – see The Government’s most important policy – family violence.

Yesterday Justice Minister Amy Adams was interviewed on The Nation about it.

Justice Minister Amy Adams speaks to Lisa Owen about her family violence law reform – does it go far enough? 

Interview: Amy Adams

The Nation repeats at 10 this morning.

Q & A is also interviewing Adams (TV1 9:00 am).

Justice Minister Amy Adams talks to Greg Boyed about her family violence reforms announced this week. Will they make a difference to our high rate of domestic violence?

And he also asks whether she agrees with calls to keep 17 year olds in the youth court – is it time to raise the age of youth justice?

Our panel includes Justspeak spokesperson Julia Spelman, Graham Barnes from the domestic violence charity Shine, lawyer Stephen Franks and political scientist Dr Jennifer Curtin.

This is an important issue – family violence has serious implications for relationships, children, health, education, crime, employment – it’s effects are widespread and insidious.

One positive is there is general Cross party support for family violence proposals.

However Labour’s family violence spokesperson has taken a swipe at the Government: Labour: Community agencies needed to reduce violence

The Government is being accused of leaving frontline agencies out of the picture when it comes to tackling family violence.

Only a small portion of a $130 million package to reduce violence in Kiwi homes will go to non-government organisations like Women’s Refuge.

Labour’s family violence spokesperson, Poto Williams, says that’s not good enough.

“I’m really concerned that the minister has completely missed the boat,” says Ms Williams. “You cannot take just a justice response to this or just look at introducing new laws.”

Ms Williams says it will be impossible to eliminate family violence without community agencies.

She says Justice Minister Amy Adams is being too simplistic.

“The only way that people are actually going to eliminate violence from their lives is to have community agencies and NGOs working alongside them for the long term.”

Ms Williams says a multi-layered approach is needed to the issue, rather than just focussing on law and order.

There is already a ‘multi-layered’ approach, with the Government looking at bolstering some aspects of that.

If more effective ways of preventing and reducing family violence are successful then ‘ambulance at the bottom of the cliff’ agencies should be needed less.

Sexual violence law recommendations

Justice Minister Amy Adams is considering a Law Commission report that recommends significant changes to how sexual violence and assault cases are dealt with by the courts.

Many sexual complaints don’t even get to court, in part due to the stress and difficulties for complainants in sexual cases.

And many cases that do get to court are indecisive, with 8% of trials being retrials due to hung juries, compared to 0.8% of all trials.

In Report suggests no juries in rape trials NZ Herald lists key Law Commission recommendations:

A sexual violence court as a two-year pilot, with specialist judges and counsel.

  • Have District Court and High Court judges take training courses in order to sit on a sexual violence case.
  • Consider an alternative to juries in such cases — perhaps a specially trained judge alone or judge with two expert “lay assessors”.
  • Consider limiting the right to trial by jury in sexual violence cases.
  • Enable victims to seek redress such as an apology, and which wouldn’t lead to a conviction.
  • Ensure cases start in a timely fashion.

Sexual complaint cases can be particularly difficult due to the (often) lack of witnesses in incidents involving just the accused and the complainant, and also the many grey areas of what constitutes offences and what constitutes consent or lack of consent.

The Law Commission has also recommended providing an alternative process for certain lower-level cases, outside the criminal justice system.

Victims would initiate the process and seek redress such as an apology or payment and the perpetrator would not have a criminal record.

That sounds like potentially a good way of dealing with less serious cases.

There were also “powerful cultural conceptions” that were “unique to sexual violence as a form of criminal offending”.

These could include moral beliefs about how a woman should behave, and misplaced ideas about how sexual violence occurs or the “correct” response.

The commission concludes there is a case for eventually putting sexual violence cases before something other than a jury – perhaps a judge alone or judge with two expert “lay assessors”, as in Germany.

That also sounds like it is worth trying.

Supervision regime for ex-Aussie offenders

Justice Minister Amy Adams has announced a new supervision regime for offenders who return to New Zealand after serving a prison sentence overseas. This is aimed at people born in New Zealand being deported from Australia.

It has been criticised by Labour and by Greens and no doubt by many others for not doing enough and for doing too much.

Newstalk ZB reports Criticism levelled at new deportation rules.

Labour’s foreign affairs spokesperson David Shearer…

…said too many people have already been shipped back here that we’ve not been keeping tabs on.

“How come it’s taken until now?,” Shearer asked. “We’re now eleven months into knowing what the Australians were going to do.”

Green co-leader James Shaw:

The Green Party’s concerned that Kiwi taxpayers are going to have to foot the bill for the new measures. Party co-leader James Shaw thinks the government will be picking up a substantial cost on behalf of the Australians.

Shaw’s blaming Key for the fact that there even has to be such a policy.

“It’s as a result of John Key’s failure to get any concessions out of Malcom Turnbull”.

One News: Plans to monitor deported crims get a cool reception.

But Garth McVicar of the Sensible Sentencing Trust says it’s not enough.

“I think what we really need is to be able to utilise the eyes and ears of the public. So we want a publicly available register,” he said.

That sounds naive. I don’t know what Shaw thinks Key could have done to force the Australian Government to do something.

If a known recent serious offender was deported back to New Zealand and committed a serious crime here then there would probably be an uproar, especially from opposition politicians. So something must be done. There will always be people who claim too much and not enough.

News release from Amy Adams:

“Our paramount concern in this regard is the safety and security of the New Zealand public,” Ms Adams says.

“From the outset, it’s been my intention that criminals being returned to New Zealand should be subject to the same sort of oversight, as offenders who had served a similar prison sentence in New Zealand.

“Now that we have a register to track these offenders and an information sharing arrangement with Australia to provide us with all the detailed information we need, we’re in a much better position to properly assess and monitor these returning offenders – the majority of whom come from Australia.”

The proposed supervision regime will apply automatically to returning offenders who:

  • were sentenced to more than one year in prison in another country;
  • return to New Zealand within six months of their release from custody overseas; and
  • were imprisoned for behaviour that would be an imprisonable offence under New Zealand law.

“The reality is we don’t have a choice whether to accept these New Zealand citizens or choose when they arrive. Along with the other initiatives we’ve already announced, the supervision regime will put us in a stronger position to monitor and manage offenders who pose a threat to the public, and will help rehabilitate and reintegrate returning offenders into the community,” Ms Adams says.

The period of supervision will be based on the length of each offender’s overseas sentence.

They will be subject to conditions that mirror those in the Parole Act 2002. Standard release conditions will apply to all offenders subject to the supervision regime, and the Department of Corrections will be able to ask the court to impose additional special conditions as required.

The proposed regime will also allow courts to impose special conditions on any offender who was subject to some form of monitoring or supervision at the time they were deported, regardless of how long it has been since their release.

Under the regime, Police will have the authority to photograph and fingerprint all returning offenders, and to require them to provide specified information, such as name and aliases, date and place of birth and intended address. This will apply to all persons who have been required to leave another country, including people who have had their residency or visa cancelled on character grounds.

In addition, Police will be able to get a DNA sample from deported offenders if the offence they were deported for is also an imprisonable offence in New Zealand – mirroring the provision of the Criminal Investigations (Bodily Samples) Act 1995.

Extended Supervision Orders and Public Protection Orders are already able to be sought for the highest risk offenders following law changes in 2014.

It is estimated on average about 100 people at any one time will be subject to the supervision regime. The scheme is expected to cost about $7 million over a five year period.

“It’s my intention to advance these changes as a matter of priority and we’ll be talking with other parties in that regard,” says Ms Adams.

The proposed scheme is the latest in a series of initiatives to strengthen New Zealand’s oversight of deported offenders:

  • A register to track and monitor the deportation of offenders (complete)
  • Creating an information sharing arrangement on trans-Tasman deportations which will enable New Zealand and Australian authorities to monitor deportations across the Tasman (complete)
  • Developing a legislative supervision regime for offenders (Bill to be introduced)

Related Documents

Peter Ellis injustice swept under Government carpet

I don’t know much about the specific legal arguments behind the Government ruling out an independent inquiry into the Peter Ellis case but it appears that again the easy option is to sweep it under a carpet and try to forget it ever happened.

There’s serious question marks over the whole case that dates back to 1993. To learn properly from it requires an honest and thorough inquiry into what went wrong.

Sad to see Justice Minister Amy Adams denying that opportunity.

It looks like another case of the system protecting major botch ups from the scrutiny they deserve and should get.

Details from Stuff: Government declines inquiry into convictions of Peter Ellis

The Government has ruled against an independent inquiry into the sexual assault convictions of Peter Ellis.

Justice Minister Amy Adams has declined a request from supporters of Ellis for a commission of inquiry, saying it did not contain new evidence and an inquiry would not determine matters of guilt.

The push for an inquiry was led by former National Party leader Don Brash, who along with Dunedin author Lynley Hood, wrote to Adams in December last year, calling for an investigation.

Ellis was convicted on 13 charges of abusing children in his care at the Christchurch Civic Creche, in 1993. He was sentenced to ten years imprisonment.

Since then, his convictions have been the subject of extensive consideration including two appeals, an inquiry by former Chief Justice Sir Thomas Eichelbaum, and a 2003 petition to Parliament. In 2008, a similar request for a Commission of Inquiry was made to and rejected by former Justice Minister Simon Power.

Adams said today she had declined the request, because the Inquiries Act could not be used to determine someone’s guilt. Nor had Ellis exhausted all of his appeal rights within the judicial system.

“Furthermore, the request is almost identical to the one made to former Justice Minister Power, and contains no new evidence. I’m not satisfied there is any new information or development that warrants reconsideration of Mr Power’s decision,” she said.

Sad  to see that one refusal to investigate properly is used an excuse to refuse another.

In their letter, Brash and Hood wrote in the history of New Zealand criminal justice, “no petition to Parliament has been supported by such a weight of political, legal and scholarly authority as the 2003 petition calling for a Royal Commission of Inquiry”.

It also cited a “wave of child abuse hysteria that swept the western world in the 1990s”.

It remains a stain on our policing and judicial systems if it remains undealt with.

Of all the controversial historical cases I see the least dispute over the Ellis case, with little sign of claims that the system got it right.

More from Radio NZ:

Related:

Justice Minister reignites de Bain debate

Minister of Justice has announced that Cabinet will start from scratch in investigating whether David Bain will be compensated for being imprisoned or not.

This will please all those who relish an excuse to debate the merits of the case.

Press release:

CABINET TO TAKE FRESH LOOK AT BAIN CASE

The Government has agreed to set aside all previous advice relating to David Bain’s compensation claim and conduct a fresh inquiry, Justice Minister Amy Adams has announced.

In November 2011, former Canadian Supreme Court judge Justice Ian Binnie was appointed to provide advice on the claim. He completed his report in August 2012.

After being made aware of concerns raised about Justice Binnie’s report and receiving advice from the Solicitor-General, the then Justice Minister Judith Collins decided to seek a peer review by former High Court judge Dr Robert Fisher. Dr Fisher found that Justice Binnie’s report contained a number of errors and was, therefore, unsafe to rely on.

“Given these events, it’s my view that Cabinet doesn’t have the information in front of it on which it could reasonably reach a decision,” says Ms Adams.

“For that reason, the advice of both Justice Binnie and Dr Fisher will be set aside and I will appoint a new inquirer to conduct a fresh inquiry into Mr Bain’s claim.”

Ms Adams says it’s important that the final decision on Mr Bain’s claim is durable and withstands the close scrutiny the case attracts.

“The New Zealand public rightly expects the Government to make a decision with the full set of facts and reliable advice in front of them. A fresh look will safeguard the integrity of the process and reassure the public that Cabinet will act on the best advice available,” says Ms Adams.

“Despite the further delay, conducting a fresh inquiry is the best approach in the circumstances and enables Mr Bain’s claim to be progressed on a proper and robust basis.”

Mr Bain’s claim for compensation falls outside existing Cabinet guidelines because when his conviction was quashed, a retrial was ordered. However, Cabinet has also reserved a residual discretion to consider claims outside the guidelines in “extraordinary circumstances … where this is in the interests of justice”. To satisfy the test for the payment of compensation that applies in his case, Mr Bain will need to prove his innocence on the balance of probabilities and be able to satisfy Cabinet that the circumstances are sufficiently extraordinary that it would be in the interests of justice for compensation to be paid.

“I have notified Mr Bain’s representatives of Cabinet’s decision and I understand they are comfortable with the process. All parties have agreed to draw a line under what’s happened and move forward in a constructive manner,” says Ms Adams.

Ms Adams will now seek advice on an appropriate inquirer and develop their terms of reference. There will be a further announcement in due course.

Related Documents

Family Court review

After an investigation finding a lack of efficiency and cost effectiveness the Family Court process are being reviewed.

Public feedback sought on Family Court review

Justice Minister Simon Power is calling for public feedback on a discussion document into the Government’s ground-up review of the Family Court.

“The Government is conducting this review over concerns that since 2004/05 the court’s overall costs have increased by 63 per cent (excluding judicial resourcing), from $83.9 million to $137.1 million while applications to it have remained relatively stable,” Mr Power said.

“And there’s little evidence that this huge cost increase has resulted in improved outcomes, particularly for vulnerable parties and children.

”The research is clear about the negative impact that persistent conflict has on children, and figures show that in 2009/10 it took an average of 306 days to complete a parenting order application compared to 216 days in 2006/07, an increase of 90 days.

“The escalating costs, for no apparent improvement in outcomes, indicate clearly that the Family Court is not as effective and efficient as it could be.

“A culture change is needed to encourage separating parents to resolve matters at the earliest opportunity, and before the conflict becomes entrenched in court.”

Mr Power has released a discussion document on proposed changes, with public submissions welcomed until February 29. The Public Consultation Paper can be downloaded here.

If you have been involved in proceedings in the Family Court you can contribute to a questionnaire:

Family Court Review Questionnaire

Introduction
The Ministry of Justice is undertaking a review of the Family Court.  If you would like to learn more about the review and how to make a submission, please click here  to go to the Family Court Review homepage.

As part of the review we want to hear from people who have been involved in proceedings in the Family Court or who have sought advice from a lawyer about a family dispute.

The answers to this questionnaire will help shape any proposals for change in the way family law disputes are dealt with.

Family issues that result in court action can be difficult, even traumatic. Any attempt to make it easier and less costly is worthwhile.

Mr Power says the government’s vision for the Family Court is one in which:

  • Vulnerable people and children are protected and prioritised;
  • Access is well managed without unnecessary litigation;
  • Processes are simple, clear, consistent and certain;
  • Personal responsibility is emphasised and costs are met by users , where appropriate;
  • Decisions are logical, workable and durable, and
  • The system is affordable to taxpayers.