Support for a submission on Expungement of Convictions for Historical Homosexual Offences

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 Hi!

There's a bill that's in select committee stage at the moment - which means that it's open to public consultation.  

The bill is called The Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill and it does just that - it allows people that were convicted under our homophobic and deeply unjust historic laws to have their convictions effectively overturned.  While I support its intent, I'm annoyed with the detail and the execution so I've drafted up a submission for the committee to consider, which I've included below.

The select committee process can be a bit wonky, which is one of the reasons why I've decided to share my wonky submission.  I'm also deeply conscious that I'm a lesbian that was born in 1989...  

Submissions close on Friday the 18th of August.  If you agree with my submission then please sign up to the petition.  When I make this submission on Friday I can show your support to the committee - I wouldn't represent myself as an individual, but I would represent this submission through the change.org petition.    

Thanks heaps for reading, and thanks for your support,

Tootsie.

ps.  here's the link to the bill and the committee on the parliament website -https://www.parliament.nz/en/pb/sc/make-a-submission/document/51SCJE_SCF_BILL_74442/criminal-records-expungement-of-convictions-for-historical 

If you don't agree with my submission or have something more to add then I would strongly encourage you to make a submission, which you can do through that link.  

Submission - The Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill

My name is Tootsie Black and I wish to make a submission as an individual.

This bill provides long overdue redress for injustices against gay men by providing for a process to expunge convictions. While I broadly support the bill, I feel like it could be improved by:

  1. a genuine commitment to consultation with people convicted under our unjust historic laws - we need to have a clear understanding of, and respect for, what it means to uphold the mana and dignity of those convicted. 
  2. expanding the scope of the bill to include an apology in law and other forms of redress
  3. reviewing the wording of the bill to ensure it respects people that were convicted and is sensitive to their experiences 
  4. a critical review of the expungement process and what this will involve for the people that the bill intends to provide redress for

I will discuss each point throughout my submission.

I would like to express my strong support for the Wiremu Demchick petition.

1. Consultation Approach

This is legislation that provides redress for injustices of our past, where many people affected by the law are still alive and live with the harms that those laws caused.

It appears that there has been minimal consultation with people that were convicted. The experiences of people harmed must be a central consideration, otherwise the law will not provide its intended redress. A genuine commitment to consultation is essential to ‘[upholding] the mana and dignity of those convicted’, called for by the Wiremu Demchick petition. We need to understand what this means for people that were convicted.

The dominant approach seems to be to consult with foreign officials that have drafted similar legislation and administered similar laws. While there is no doubt that we can learn from the experiences of other countries, this approach is likely to have some serious shortcomings. In particular, it could:

  • make our law subject to political compromises that may have been made in other jurisdictions - this is offensive to the process of providing redress through our own political system
  • sideline the way that people were actually treated by our legal system under our crimes act - this creates a very real concern that the legislation will provide limited redress or be inaccessible because it doesn’t appropriately recognise experiences in New Zealand
  • ignore other forms of redress that may be appropriate in the New Zealand context 
  • I encourage the committee to take a consultation approach that actively incorporates the experiences and concerns of people with historic homosexual convictions and recognises the New Zealand context.

2. Expanding the bill to provide redress for convictions more broadly, with expungement being one part of that redress

There is an immediate and pressing need to overturn the convictions to ensure that men are no longer affected by historic convictions.

The bill is informed by a broader sense that convictions to be expunged were wrong and should be overturned. This is a matter of principle and an essential part of addressing historic injustices created by homophobic laws. As such I think there is scope to provide a broader form of redress through this bill.

The bill should include an apology 

The laws that this bill provides expungement for were patently unjust and caused real harm to gay men. It seems fitting that the harm our historic laws created is recognised through a formal apology in legislation.

Historically unjust laws may be a murky area for democratic governments, especially for democratic systems where parliament is sovereign. The problem of harm to minority groups at the hands of the majority is a well known problem for democratic societies. Our system of parliamentary sovereignty relies heavily on strong leadership of parliamentarians and an ethos of justice from the citizenry to act as a check against unjust laws that can be created by political processes that rely on majority opinion. An apology in law, passed through our parliament exercising its sovereign power, is entirely appropriate in New Zealand’s context.

I don’t think that an apology in law is outside the scope of this bill. This legislation is at least 30 years too late. There may not be another opportunity for our parliament to recognise the unjust nature of historic laws prohibiting same sex sex, and the real harm that these laws caused.

Consultation will be essential for the apology to be meaningful.

 

Other forms of recognition should be considered

The current legislation explicitly excludes compensation or financial remedy.

This may be seen to be a difficult area. I understand that some of the difficulty is because existing forms of compensation relate to miscarriages of justice at an operational level, rather than injustices that have a parliamentary mandate. There may also be concern that this sets a precedent that will affect future claims or cases. While equity is important, we should have the strength to consider historic injustice, and appropriate forms of redress, on their own terms. Consultation with men affected by our unjust laws would provide guidance.

If consultation with affected men shows that a form of financial recognition would give force to an apology and expungement then this should be seriously considered. Leadership may be required to ensure that financial recognition doesn’t delay expungement - it would be deeply unfair if affected men had to make a political compromise because they felt that pushing for financial recognition would delay or undermine expungement. I trust that officials from the Ministry of Justice and members of the committee are capable of this leadership.

The committee should also consider broader forms of social recognition that may also be appropriate, such as:

  • commissioning a history that documents gay experiences in New Zealand
  • commissioning a public memorial to recognise the strength of people that challenged our unjust laws against same sex sex, and the personal sacrifices forced upon men by a legal closet.
  • ensuring support services for queer people are appropriately funded
  • requiring government agencies and institutions to have policies that ensure queer people are treated with respect and have access to appropriate services.

These broader forms of recognition are arguably the standard business of government. They should be seriously considered as actions that give force to an apology and the process of expungement.  

3. Review wording to ensure respect

Historically our laws and often our social attitudes have bundled homosexuality, sexual deviance, and sex offending together. We have evidence of this bundling in our crimes act.  This bundling is extremely hurtful.

In response to this, the gay rights movement has had to push for society to recognise a distinction between homosexual sexuality and sexual offending. This is an undeniably hurtful process.

With that context in mind.... I'm not sure what the status of an explanatory note is, but consideration of this hurt needs to be taken when drafting the legislation, if not explanatory notes; it should not read in a way that undermines the dignity of the people it is intended to provide redress for.  In particular, I am concerned about the emphasis on consent and age throughout the explanatory note. The definition of historic homosexual offences, combined with the broad test of expungement (that the conduct constituting the offence, if engaged in when the application was made, would not constitute an offence under the laws of New Zealand) seems to appropriately identify situations where an expungement is intended. Given this, the emphasis on age and consent, either in explanatory notes or in the bill itself, feels excessive and hurtful.

A considered and thoughtfully written apology in the first part of this legislation could serve as an appropriate way to frame the law so that it respects the people it intends to provide redress for.  


4. A critical review of the expungement process

If there must be an application then the application must be designed with someone that has a conviction to be expunged in mind.  I can't stress how important it is to consult with the community, but I've included some ideas as a starting point for consideration below.

Requirement to apply

One of the problems that the Ministry of Justice seems to have is based on record keeping and the way that historic homosexual offences were categorised at the time.

As a result of the nature of the records for historic homosexual convictions, officials consider that a proactive expungement process would be inappropriate; a blanket process wouldn’t appropriately capture people with historic homosexual convictions, and a proactive process failed the efficiency test because of its high administrative burden on officials.

An application places a burden on those that apply. Because of this, people with historic homosexual convictions ought to be able to realise the benefits of a process where historic convictions are considered on a case by case basis. I ask the committee to reconsider:

including related offences, such as public order offences. A test for related offences could be developed - the desire to include them comes from a recognition of the impact that a criminalised sexuality can have on behaviour. These were excluded on the grounds of being administratively complex, but a system that requires an application and a case by case consideration, combined with an additional ‘related offences test’ would be appropriate for considering such cases without adding significant administrative burdens.

including a recognition payment, which is more suited for situations where cases are individually assessed because of the increased certainty this provides.

Where there is a requirement to apply there is an obligation that this process is accessible, understandable, and transparent.

Clarity of the evidential standard is required

I understand that there is concern that the age of records, and omission of information about consent because consent wasn’t recognised as a defence at the time, may create ambiguity when applying the expungement test.

Consideration should be given to whether there are situations where, in cases where information is absent, an absence of information would imply consent for historical homosexual convictions. If this is the case then this should be considered.



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