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

It’s an absolute delight to be able to take a call in regard to the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill, in particular in the committee of the whole House debate. In having regard to this very significant and important bill, I’m proud to see that there is universal and widespread agreement across the House for the ethos that underpins it. It does expunge the convictions of those that were convicted under our previous law for the simple act of being able to love somebody.

I just had a couple of questions for Minister Little in regard to some of the finer details of the bill and the general effects of expungement. I wanted to understand whether a conviction expungement under New Zealand law would have a broader purpose—whether people who had been convicted under the previous law would still be required to disclose those former convictions in any overseas jurisdictions, and whether that was universal across the board. So I just wanted to understand that, if the Minister could step us through that a little bit.

On a personal note, a couple of weeks ago my uncle Darcy—he was my nana’s youngest brother—passed away. He moved from our ūkaipō in Te Puna as a young man—moved up to Auckland, to the city of bright lights, to live a life that in our small town wasn’t viewed with much favour. At his funeral, there were a range of people that came and talked about the lifestyle of the queens that lived up in Auckland, which my uncle was very heavily involved in in that community, and as they gave their stories, both inside the marae and outside the marae, they spoke of the weight of what it was to be young men, as they were, some of whom were in constant fear, hiding from the law, and being disconnected from their families. They spoke about the impacts of being able to travel universally—well, actually, just to live their life and get decent jobs without having to make disclosures of those criminal offences, just because of the fact that they loved somebody of the same sex. That was a topic that was very much a part of discussion at my uncle Darcy’s tangi.

So the Minister might be so kind as to just give some update for those that might be watching this debate at home, and also for myself, so we can understand exactly what the nature and extent of expungement of those domestic convictions will mean here for those people living outside the country.

Thank you, Madam Chair. There are some bills that we debate in this House that strike straight at the heart of people’s lived existence, people’s suffering, fear, and hurt, and give us an opportunity to remedy that, and this bill really does that. I just also want to say that it was an absolute privilege to be part of the select committee, the Justice Committee, that went through this bill, that heard public submissions on this bill, and that actually worked very well together to make some amendments to part of this bill, which I will go through today, as well.

I just want to, firstly, thank the former Minister of Justice the Hon Amy Adams for her work on this; the current Minister of Justice, the Hon Andrew Little, for his work on this; and my colleagues on the select committee and, of course, those who submitted on this bill, as well. We heard some very emotive, some very emotional, submissions, and I want to acknowledge that.

Part 1 of this bill looks at, basically, the purpose of this bill—what does this bill do? The reason that we’re here today—and this goes way back to the way I began, actually—is, for those of us in this House, there is immense power here to impact people’s lives. It’s a little bit like fire: sometimes we don’t get it right and it ruins people’s lives completely, and sometimes we have the opportunity to remedy it. Now, the Crimes Act 1961, and its predecessor in 1908, criminalised sexual activity between males 16 years and over. Between that time and 1986, when the Homosexual Law Reform Act decriminalised the same activity, we saw a number of people who were caught in a space where just being themselves meant that they became criminals or were deemed criminals by society.

According to Statistics New Zealand, between that time period nearly a thousand men were convicted of indecency between males. About 138 of them had a sentence of imprisonment, and many others had either fines or community-based sentences, as well. Quite apart from that was the abject fear that they lived in of law enforcement agencies, the stigma that they suffered—young men who were thrown out of home for being homosexual—and the huge implications for their health and their mental health. So this bill gives us an opportunity to put that straight. It also sends a really clear signal to future generations of young people in the LGBTQI community.

So what does it do? The purpose of this bill is to address that stigma, that prejudice, that the young men who were convicted have faced. It’s all well and good for us to say post-1986 that this is no longer criminal, but it’s a whole different matter for it still to be on people’s criminal records when they either apply for a job or are considered for any position or status of some sort. So this addresses that issue. It enables an application for expungement of a conviction to be made under this legislation. Parts of the bill that I will get into shortly sort of outline who is eligible to make the application—whether it’s the person who has been convicted themselves or someone acting on their behalf as well. Actually, both are eligible to apply for an expungement, and I’ll go into that in a little bit.

Part 1 also looks at the interpretation—the definitions: who does this apply to and how? It lays that out quite clearly. I just want to draw your attention, Madam Chair, and that of those who are watching, as well, to clause 4, as an example of the types of issues we debated, in a lot of depth, actually, at select committee. For example, “ ‘criminal record’, of a conviction for a historical offence”—initially in the bill it was written down as an “official record”. The select committee suggested that that be changed to a “public record” so that we align the definition better with section 4 of the Public Records Act 2005. There are a few other changes in clause 4, as well, that will give better meaning to the expungement per se.

The other part of Part 1, of course, is the definition of historical homosexual offences, and it’s quite specific as to who can apply—so what sorts of convictions a person must have had in order to be eligible to apply for this. It lays it out in clause 5. Basically, there is the time period that I laid out at the start that’s between 1908 and 1986—so from the start of the Crimes Act that criminalised such behaviour right through to 1986 with the Homosexual Law Reform Act, that decriminalised the same behaviour. So that’s the time period within which people who have had such a historical conviction can apply for the expungement.

The other relevant part that’s outlined in clause 5, and I’ll just read this bit, because it’s quite detailed, is the sections that have been repealed—the specific sections of the Crimes Act that have been repealed. They are section 141, and that deals with indecency between males—so that’s section 141 of the Crimes Act 1961; section 142, which deals with sodomy; section 146, “keeping place of resort for homosexual acts”; section 153, unnatural offence, of the Crimes Act 1908—so that’s the predecessor Act—“but only to the extent that the section covers committing buggery with any other male human being:”; and section 154, “attempt to commit unnatural offence”, so similar to the previous one, but an attempt rather than the actual offence being committed.

So people within that time frame who were convicted under any of those five sections that I’ve outlined will be eligible to apply for the expungement of that conviction. Now, this also applies to those who might have passed on since that time. So they may not be able to apply in person, but a representative—someone from their family, perhaps—can apply on their behalf, as well.

I’ll just, at this point, draw attention to the fact that some submitters at select committee alluded to the fact that, potentially, this bill should go a little bit further and apply an automatic expungement to everyone—to those thousand people perhaps that we have details for—who would be eligible. That was considered by select committee, but the advice that was received was that that blanket automatic expungement actually might leave a few people out, so a proactive application for expungement was actually better. It meant that people could—we potentially included more people in that.

The other point to note, of course, is that these convictions actually brought about a lot of trauma for those who were convicted, and so it’s not everybody who would want to have to revisit that trauma as well, and an automatic expungement might put people in that position. So, instead of that, it was better that people applied if they wanted an expungement.

Now, Part 2 is the test for expungement—so, who’s eligible? We’ve gone through the time period and the specific convictions under the two Crimes Acts. We’ve also mentioned that the person themselves, or a representative—and that’s in clause 8, Part 2 of the bill. Now, the test is that the conduct constituting the offence, if it were engaged in now—so when the application is made—would not constitute an offence. So basically, what we’re saying is we had a law back then that criminalised people for just being who they were. We don’t think that was right, and, if the conduct that they engaged in at the time actually happened today, they wouldn’t be convicted.

So that’s pretty much the test, which then falls out, for example, cases of rape and cases where there was no consent—that would have been an offence back then, also because it was a sexual activity between males. That part of it would no longer hold under current law, but the lack of consent would. So those that fall into that category, this bill clarifies, would not be expunged, basically—that particular conviction would not be expunged.

So Part 2 of the bill lays out quite clearly the instances in which the conviction would not be expunged. There are also parts in Part 2 that basically say that a status cannot be refused or revoked. So, basically, a person who has an expunged conviction should not be disqualified on that ground for employment or for any other appointment or post—so quite detailed in the bill.

I have a question, though, for the Minister in the chair, Andrew Little, and that’s around compensation that came out in the select committee as to why that wasn’t part of this bill. It would be good to get clarity. Thank you.

Madam Chair, thank you. First of all, I’d like to acknowledge the members of the Justice Committee that are here today, including the chair, Raymond Huo. I would like to acknowledge the great work done on this by the Hon Amy Adams, and also I’d like to acknowledge the Hon Andrew Little for taking it on.

I was put on the Justice Committee when I first became an MP, which was only a few months ago, and I was learning about how select committees work. I thought that dealing with this particular case was the way select committees operated, and I didn’t realise that it’s not always the case. This important piece of legislation I’m proud to have served on, and I found that the whole select committee, across parties, supported this. Quite frankly, it’s a no-brainer to support it, anyway. It was a very collegial manner that we dealt with it.

What I found was that select committee members brought their own life experiences to the discussion—in particular, we had Ginny Andersen, who’s got a background with police and intelligence and justice. We also had the “dinosaur” up there, Greg O’Connor, who has had 30 years in the police and has huge amounts of invaluable experience—[Interruption]—and I say that quite fondly. So he brought a lot to the table. Also, the officials that are here today also brought their contribution. So we all worked together, and I think we got a good result.

Now one of the things that we argued about, or talked about, actually—discussed; we didn’t argue, but we talked about it—was what the definition of expunging would be, or what it would literally mean. Would it mean that on the computer screen it would say the conviction and then have the word “Expunged” by it, or did it mean that there was no reference to what the conviction was and it would just say “Expunged”? The officials came back with what they believed would be the way to deal with it, and that was just to have the word “Expunged”. But from our experiences in the police and others, we felt that any reference on that computer screen that could identify what it was would defeat the purpose.

So then, the officials came back to us and said, “Well, why don’t we just make it an offence to disclose whatever was on the screen?”, but I have to hark back to my experience when I was in the police, which was that—and it doesn’t relate to this particular thing, but it’s along similar lines. That was a schoolteacher that came to the area and he had some conviction—just a very minor one; a very minor one. It was a small town and people within the courthouse had access to that information and disclosed it, and it caused him a lot of problems. It was very minor stuff and nothing to do with this, but it caused him problems. So, from my own experience, I felt that the computer record itself had to have no reference in there, otherwise it would defeat the purpose, and I believe that’s where we’ve gone with it.

So that’s my contribution. I’d have to say it was a pleasure to be part of the team. I’m no longer on that select committee. I’ve been moved to the Transport and Infrastructure Committee, but it was a pleasure to be on that team. It’s a pleasure to be part of this process, and I recommend it to the House.

Thank you, Madam Chair. Thank you, members, too, for your contributions so far. To Mr King, it’s good for members in legislation like this to be able to bring their personal experiences, and it’s for that reason that the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill specifically provides not only for the expungement, in whatever nature that takes, but actually that subsequent disclosure by an official of a conviction that has been expunged ought to lead to consequences too. So it was good to be able to bring that inside.

Can I just come to a couple of the questions that have been raised by members so far. Kiritapu Allan asked a couple of questions: one about the extent of expungement and the other about what is disclosed. So in relation to the extent of expungement, the bill is pretty clear. The specified offences which have led to a conviction, those are expunged from the record, but if somebody is convicted of an offence such as disorderly behaviour that might relate to the same sort of conduct that would otherwise have led to those other offences, the offensive disorderly behaviour will not be expunged. But then the failure to expunge that particular offence will not lead to an inference or an implication that the person making the application has engaged in a homosexual offence and therefore subject to the discrimination that might be associated with that.

On the issue of what is disclosed, and particularly in relation to dealing with overseas bodies and organisations and parties, I think the bill and the consideration by the Justice Committee saw that this was particularly problematic. In any event, it will come down to the sort of question that is asked. So if the question is, “Do you have a relevant conviction or a conviction?”—and in this case, the conviction under this bill has been expunged—then the person is quite free to say, “No, there is no conviction.”, because it has been expunged. If, however, the question is, “Have you been arrested for an offence?”, that will not allow the person to say no, they have not been arrested. They will have to disclose that they’ve been arrested; they will not have to disclose the offence. So people do need to understand that particular limitation.

I’m thankful to Priyanca Radhakrishnan for her adumbration of the issues that she gave. She notes the, in a sense, arbitrary date around which the historical offending is limited, and it is offences after 4 August 1908 because it deals with the first legislation that provided for those offences, which was the legislation that took effect from 4 August 1908 and then, subsequently, the Crimes Act 1961.

The obvious question is why wouldn’t you go to a period earlier than 1908, and I think the Justice Committee made a pretty pragmatic conclusion, which was that it is most unlikely that there would even be descendants who would be concerned enough about convictions made before 1908 that would warrant the system to be able to accommodate that. So, yes, the cut-off date back to 1908 is arbitrary, but I think there are good reasons for that.

In terms of the specific question that Ms Radhakrishnan raised, which is why compensation has not been provided for, I think it was pretty clear from a policy point of view, and I think the select committee discovered, it was just going to be too problematic. I think it is true, also, to say that there are mixed views within the community about whether compensation is warranted or justified, and even if you did want to work out a compensation regime, how would that work, what are you compensating, or what is the extent of compensation?

In the end, I think what most submitters raised was that in order to remove the stigma associated with a conviction for these offences, or this conduct that is no longer regarded as a criminal offence, it is removing the record of that offence. That is the right outcome to achieve rather than trying to come up with a complex arrangement for compensation.

So, on that note, I’m happy to have answered those questions, and I look forward to the ongoing discussion.

Thank you, Madam Chair. I was late in returning to the debating chamber to take my call because the Hon Maggie Barry and I had a joint meeting with the clerk of the Justice Committee, so it is very fitting for me to thank the clerk for his contributions. It’s a very busy, very effective committee, and we did enjoy the work. Congratulations are in order for the Minister in the chair, Andrew Little, on making this bill one of the Government’s priorities and also for the then Minister of Justice, the Hon Amy Adams, on putting up the bill in the first place last year.

At the committee of the whole House stage, it is very appropriate for me to touch upon some important issues raised by members at the second reading. Those issues included, for instance, eligibility, illegality, the real effect of an expungement, and also, as the Minister just touched upon, the issues around compensation. Some of those issues were difficult ones, and without the input of the submitters and people in the know, and without the help of the officials, we simply could not get to the point where we are now.

For instance, the original clause 13(2) could be interpreted as such that those job applicants could be seen as agreeing or consenting to the disclosure of the expunged convictions even if those convictions are not relevant to the job at all, and this is not at all the intention or the purpose of this bill. Clause 13(2) is a difficult one, simply because it is concerned with this bill’s relationship with other pieces of legislation, especially the Vulnerable Children Act.

Having said that, I should acknowledge our officials who have done a great job, and the officials are in the debating chamber. I acknowledge their knowledge, input, and level of professionalism, and also I’d like to acknowledge and thank the Parliamentary Counsel Office, particularly Mr Ross Carter. They have always taken the optimal drafting approach, which has been reflected a great deal in the shape of this bill.

Back to some important points raised by members during the second reading debate, the first one, obviously, is regarding the records. This is about the real effect of the expungement. When talking about the records, there are generally two kinds of such records. One is a CMS, a case management system, and the other one is CaTCH, criminal and traffic conviction history report. With regard to CMS—case management system—operationally, the court record will be retained in the CMS, which is the court’s database. A court staff member with access to the CMS for the criminal jurisdiction will be able to view the records. All charges are recorded in CMS. This includes those that have been withdrawn by leave, dismissed, acquitted, or quashed on appeal, etc. It would be undesirable to remove expunged convictions from the case management system, as this system is intended to provide a full record of all court activity.

At the select committee session, we did hear submissions from those concerned about their record and the real effect of the expungement, and one or two submitters raised the point that given this is in the nature of expungement, why not remove the entire thing from any such records at all. To reinforce that sort of view, it would be undesirable to remove expunged convictions from the CMS, simply because this system is intended to provide a full record of all court activity. However, for the purpose of this bill, that expunged conviction would not appear on the individual’s criminal and traffic conviction history report.

Some submitters raised their concerns or some proposals with regard to compensation. As the Minister just said, there is no such principle to support such compensation because there is no general principle that a person who is convicted on a repealed offence is entitled to compensation on the repeal of the offence. Yesterday, when I made my contribution, I did mention the Yogyakarta Principles, because some submitters raised their concerns that without compensation or lack of such a policy initiative we could be seen as potentially in breach of the Yogyakarta Principles.

The Yogyakarta Principles is a set of principles established in 2006 about human rights in the sexual orientation and gender identity space. The principles affirm binding international legal standards with which all States must comply. There are 29 such principles together with additional recommendations, and representatives from the UK, US, Australia, Canada, and New Zealand were among the signatories.

We acknowledge the concerns raised by submitters. However, compensation goes beyond the purpose of the scheme, which is to prevent, as the Minister just said, further negative effects from the stigma of a conviction. Having said that, clause 22 of this bill, however, does not limit other measures under the New Zealand Bill of Rights Act 1990, which protects the right to bring civil litigation against the Crown. Further, clause 22 does not exclude other rights to compensation which may be pursued under existing legislation. For those who are concerned about lack of compensation or that there is no mechanism provided under this bill, what we can confirm is that this particular clause or policy initiative aligns well with the approach in comparable overseas jurisdictions.

Another matter the Minister in the chair just touched upon is about the 1908 cut-off, because under this bill, it is concerned with two pieces of Crimes Acts, if you like. The first one is the Crimes Act 1961 and the other one is the Crimes Act 1908. What I could add on to the contributions made by the Minister and other members is that in practice the Secretary for Justice may receive few applications for offending over this time period, because the convicted persons would be deceased, and potential representatives of the convicted persons are unlikely to have knowledge of the convictions. Offences prior to the Crimes Act 1908 were not included, as any convicted persons from this era would have been born in 1892 at the latest; namely, at the age of 16.

Having said that, I’d like to take this opportunity to thank those people who are involved in not only this bill but also the petition in 2014 of Wiremu Demchick, and 2,111 other people who signed this petition, which we considered along with this bill. Thank you, Madam Chair.

It gives me pleasure to rise on the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill. One of my colleagues across the Chamber described me as a dinosaur, some minutes ago, in relation to my time in the police. It did cause me to reflect that I did spend some time as a police officer in the New Zealand Police and I was indeed in the police at a time when police were actively policing these Acts: section 141, indecency between males; section 142, sodomy; section 146, keeping place of resort for homosexual acts; section 153, unnatural offence; section 154, attempt to commit unnatural offences.

As I sat on the Justice Committee and considered the submitters, considered the bill, it did cause me to give thought to just what it was like in those days—those days in the 1960s and 1970s and 1980s even—for those who were brought into the criminal justice system, because it wasn’t just a conviction; it was everything that went with that. In a lot of the latter years, a lot of the policing of the Act, in Wellington, was around Marion Street where a lot of transsexual men and a lot of homosexual men would nightly be brought into the Wellington Central Police Station and charged with associated offences. So as I considered that—I looked at the different parts of the bill—I couldn’t help but have context for what it was that we were actually doing and achieving with this bill, and that, complemented by the submitters, who brought their own stories, their own experiences, to the select committee, really did give me a sense that this is a very right thing to be doing.

Saying that, I think we should remember that we are in another time now, and we shouldn’t be too hard on those who were responsible for the legislation and the enforcement of same in that period, because, quite frankly, that was another time. But we are now in a time when we, I think, take a much broader view of the effect that some relatively narrow views placed into the criminal justice system can have on the lives of people, particularly those who are part of this.

I look at what the bill was attempting to actually achieve at its outset, and one of the main parts of that, of course, was that it was essentially to “reduce prejudice, stigma, and all other negative effects”. I go to clause 3, “Purpose of this Act”, which is to, “reduce prejudice, stigma, and all other negative effects, arising from a conviction for a historical homosexual offence”. In doing that, it allows, upon application by the convicted person or a representative on their behalf, if they are deceased, the expungement of a historical heterosexual offence if it meets the test for expungement.

I refer to that part of the Act where it lists the classes of people who are able to apply on behalf of a deceased person. They are the executor, the administrator, or the trustee of their estate; or their spouse, civil union partner, de facto partner, parent, sibling, or child. The definition of “representative” also includes anyone who has requested to be a representative and the Secretary for Justice has granted that request. There was some discussion at the select committee as to the extent that it should be applied to those who had passed on, but certainly the agreement was that the pain was often so great for those individuals that it did actually carry on well beyond the grave and, in fact, to family representatives. I commend this bill.

Thank you, Madam Chair, for the opportunity to speak on the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill. As a member of the select committee that considered this bill, it’s been really a great privilege to see it progress through these final stages and, in particular, knowing that the burden will be lifted off many shoulders of New Zealand men who have been wrongfully convicted in the past.

What this legislation, effectively, does is it sets up a scheme that is open for individuals, or a family member, to be able to apply—an application for those that have been charged and convicted of specific offences that are listed in this piece of legislation; in particular, sexual conduct between consenting men between 16 years and over. If someone is deceased, it’s able to be applied for by a family member of the person affected. It’s important to note too that this application process is free, and that’s good to see.

Many of the submissions that we heard at the Justice Committee raised the question of compensation under the bill and whether or not compensation should be provided. That’s in clause 22 of the bill. It clearly stipulates that no compensation will be provided for those that had convictions that are expunged. While many of those submitters who had suffered wrongs would like to have been given consideration for that, it’s important to note that we’re aware that men convicted of these offences suffered real harm as a result but to go further than that was not required. So there were submitters who agreed with that position of the committee, and the resolution has been that clause 22, in fact, provides that there will not be compensation able to be provided.

It’s important that we look at how this bill enables those to look at the case by case analysis. So in clause 8, the scheme requires a case by case assessment of the relevant facts to determine whether the conduct of a person was charged and whether that was in fact unlawful today. It’s important to note that that decision is in fact made by the Secretary for Justice. So there’s no need for applicants to appear in person for that. If a person’s conviction is expunged, the conviction will not appear on a criminal record or a check for any other purpose. It’s also important to note that they will be entitled to declare, if requested in any way—for filling a job application in terms of requiring to declare their criminal history—that there’s no reason for that to be declared in that space. That is also great to see.

There have been a number of comments made too around clause 9, “General effects of expungement”, and that was an issue that the committee also looked at very closely. So clause 9 confirms the effects of expungement, and the person with that expunged conviction is entitled to declare they have no such conviction. The committee has made an amendment to that clause 9 to include that the expungement does not authorise or require the destruction of criminal records of expunged convictions, as stated in the explanatory note in the official record.

It’s also important to note that there’s been another amendment under clause 13, which notes that it is an offence to unlawfully disclose the information and the requirement to make sure that is concealed. So that’s an important note, too. We live in a small country and people are often accessing records, so it puts the burden of proof on somebody else who, for whatever official reason, is looking through records, to make sure that that is an offence to disclose it under this legislation, to protect really the privacy of those people who have been wrongfully convicted in the past.

It’s been a real privilege to be participating in a bill at this stage after hearing those submissions first hand from people affected. I’m proud to see a strong bill that enables the wrongs of the past to be put right and to give people a sense of that justice. So without further ado, I commend this bill to the House.

Thank you, Madam Chair. I once again thank members for their contributions and I’d like to take a moment to respond to some of the issues raised.

Our colleague Raymond Huo referred to clause 9(7) and the fact that court records will continue to be retained. So this bill allows for a process for the conviction to be expunged and, therefore, for the person making the application to not be required to disclose that there was a conviction—that is the nature of expungement—and for those requesting that information not to be able to have access to it. But it doesn’t mean that the record of the conviction is therefore destroyed. It is important—as I think the Justice Committee was advised—that public records, because of the obligations under other statutory obligations, need to be maintained and that a combination of the application for expungement which is then granted changing or altering what appears in the record that’s accessible to officials who will be providing information and also constraining those officials from disclosing a conviction that is otherwise expunged, I think, provides the protection and the certainty that those making applications under this bill would be looking for.

Once again, Mr Huo raises a question about compensation. He notes that there is still a right for those who have been convicted under previous legislation, and who would be entitled to an expungement under this legislation, to bring claims for damages in relation to conduct against them while in custody or while incarcerated or otherwise while being handled by the authorities in relation to the offence which they were subsequently convicted of. There is that angle, but compensation merely for the fact of conviction which would lead to an expungement under this legislation is too problematic and too complex to contemplate, which is why the bill does not provide for compensation and why the Government also, outside the confines of the legislation, is not considering a compensation regime.

The honourable member Greg O’Connor referred in his contribution to the definition of people who can apply for expungement on behalf of those who have been convicted. So those who are deceased but who had a conviction can posthumously achieve an expungement if someone applies on their behalf. So the legislation calls for a definition of a representative of those people, and that is clearly laid out. Mr O’Connor very assiduously—and I would say with great eloquence—went through those who are defined as a representative who can make that application.

It does require some proximity of relationship to achieve that. It is not any old Joe Bloggs who can turn up there and apply on behalf of somebody they don’t know, but because they are a busybody and might have some interest in some historical figure. It has to be somebody—a member of the family, bearing in mind that a conviction of a person under those historical offences will feel a sense of shame as well, and it is as much for the assuagement of their sense of shame as much as for the person who had the conviction as well.

Finally, Virginia Andersen referred to the issue about compensation, again in clause 22, and I confirm the select committee’s view is that compensation is not provided for. But then Ms Andersen focused on the test for expungement. And what that test for expungement focuses on is not just merely the conviction; it’s the conduct underlying the conviction, and that allows the Secretary for Justice, who has to consider the applications for expungement, to consider whether the nature of the conduct that led to conviction was innocent, was consensual, or whether there was a predatory character to it, or coercion, or some other nature of the conduct that vitiated the consent that you would expect that you would expect there to be in relation to activities that today would not today attract a criminal sanction.

So those things are covered off, and once again I thank members for their questions. I look forward to the ongoing discussion.

Thank you, Madam Chair. I feel quite proud and humbled to take a call on this bill—such a necessary piece of legislation in the healing process which continues around the stigma that has persisted despite the 1986 piece of legislation, a stigma that has been suffered by people who are being punished or have felt that they continue to be punished for being themselves by previous criminal convictions. I feel really proud of the whole of this Parliament, the Parliament of New Zealand, that we are taking this step.

I’ve got some specific questions around clause 13A, which was inserted at the select committee process, which was around “Offence to require or request that individual disregard expungement”, and note, again, the purpose of the bill: “to reduce prejudice, stigma, and all other negative effects, arising from the conviction for a historical homosexual offence”. But the Justice Committee obviously felt concerned enough to want to insert a new clause, and I don’t know whether that was as a result of good work just by the select committee members thinking of all the unintended consequences, or whether this came from submissions—the 37 submissions. But there was the concern that in some situations, even if a conviction had been successfully expunged, people might still be required to disclose the fact of the conviction. So the insertion of clause 13A makes it an explicit offence to require or request an individual to disregard the effect of expungement under this bill.

So my question to the Minister in the chair, Andrew Little, is around the problem definition around that. Was there a set of circumstances and actual cases where there was concern that this kind of behaviour would occur? Also, what would be the process for actually enacting that offence? How does it become an offence? What was the thought that went into that? I’ll just remind the committee that clause 13A has two parts to it. In the first part, clause 13A(1), the person commits an offence if that person “requires or requests that an individual—(a) disregard the effect of expungement under this Act when answering a question about the individual’s criminal history, or disclosing information concerning any convictions of the individual, or both; or (b) disregard the effect of expungement under this Act …”. So it sounds as if it’s a blatant disregard of what this legislation actually stands for.

There is concern that there is still the prejudice that exists, partly, in our community where there are people who would disregard, and if they did, then, as point two states, “A person commits an offence … is liable on conviction to a fine not exceeding $10,000”—what thought has gone into how that would actually be enacted, and what would the recourse be, because if they wanted to get their conviction expunged, they have to apply—am I correct—to the Minister? So how do you actually get that offence to occur? Does it have to go through the Minister to be referred to the court, or is there some other mechanism? I guess that’s the question I have for the Minister in the chair on this bill.

I certainly am not disagreeing with clause 13A. I think it obviously shows good thinking by the select committee members. But I just—on reading through it and, of course, not having been at the select committee—am unsure about how that actually played out. Other than having that question answered, this is an extremely important piece of legislation. It’s part of the healing process. I commend it to the committee.

Thank you, Madam Chair. It’s really just a short point that I’d like to put to the Minister. It’s around clause 5 of the bill, which defines “historical homosexual offences”. My concern is that there are a number of offences which may have led to a conviction but which don’t fall within those—in particular, offences which the prosecutor chose to prosecute under some Act which didn’t have necessarily a homosexual element to it. Examples might be a loitering offence or an indecent exposure offence, which nevertheless were triggered by behaviour which, in fact, came to the attention of the authorities or the police because it had this homosexual element, which now would not even raise an eyebrow.

As I read the bill, a person who has been convicted of an offence which the prosecutor might, in fact, have prosecuted because it seemed the less invidious offence to prosecute will nevertheless now be tarred with that offence and can’t come forward and say, “This is, in fact and in substance, a historical homosexual offence, and because of what appeared to be almost an act of mercy of the prosecutor, I can’t now have that offence expunged.” But nevertheless, it still carries with it all of the difficulties of an offence that would have to be disclosed if requested, and that does seem to me to be something of a mismatch.

Now, I accept that the difficulties of proof around that may be difficult, particularly with the effluxion of time, but it does seem to me—particularly for people who are alive and whose prospects and reputations are affected by this—that it would be appropriate for them to be able to come forward and say, “This is a real matter of concern to me. This is, in fact, an offence I should never have been convicted of because it’s only attracted attention because of my homosexual conduct.” So, Minister, I won’t take any more time—it’s just a short point—but I would like to see your response to that.

Similar to my colleague Duncan Webb, there’s just one issue that I wanted to raise with the Minister. I know that interpretations aren’t always the most exciting part of a bill, but I do want to focus in on the interpretation of “representative”, which is in clause 4 and which sets out that if someone is deceased and, on their behalf, someone wants to get a conviction expunged, it sets out within the bill exactly who is able to do that as a representative.

It goes through the list of “the executor, administrator, or trustee … acting on behalf … a spouse, civil union partner, or de facto partner, of the convicted person:”, and the issue that I have, or the question that I’d like to ask, is around paragraph (c), and that is the definition in terms of a family, because it is very prescriptive to “a parent, sibling, or child, of the convicted person:” who can act as a representative.

Just looking forward to clause 5 and the timings around when these convictions may have happened, beginning in August 1908 and ending in August 1986 is quite a long time frame, so there could be a situation where it’s not a parent, sibling, or child of a convicted person but it may be a grandchild or great-grandchild of a person that has been convicted under these previous laws who may want to see the conviction expunged. I guess the question I would like to ask is whether there is any scope to broaden paragraph (c) out—and we’re talking about family who can be a representative of the convicted person who is now deceased—either to be less prescriptive or to include grandchildren and great-grandchildren, because I think we may get into a situation where there’s two tests for direct descendants of people who have been convicted of, first, one, proving their worthiness as a representative—and if it were a direct descendant of mine, I’d find that possibly a little bit offensive—and, two, convincing the system that their conviction should or could be expunged.

So I guess the very simple question is can we look at that? I know that paragraph (d) allows the Secretary for Justice to deem somebody else who may be an appropriate person to act on behalf of the deceased convicted person, but with a topic so sensitive, it would be felt quite acutely by grandchildren or great-grandchildren of people who were convicted, and I think we should seriously think about broadening out the definition of a “representative” in terms of family members so that we don’t have a two-step test for them.

Thank you, Madam Chair. Just to respond to some of the questions that have been raised in the last two or three contributions, can I turn to the intervention by the Hon Clare Curran, who raised a question about clause 13A, which makes it an offence to require or request that an individual disregard expungement. As I understood Ms Curran, she had two questions. One is focusing on the circumstances in which that might arise, and why did the committee think it was necessary to provide a remedy for this possibility, and then, secondly, how would the offence be enforced?

So, on the first, this provision mirrors a similar provision in the clean slate legislation. So somebody who meets the conditions of that legislation of going through a period of time where they have not committed a low-level offence that they have previously been convicted of can apply to have their criminal record, effectively, cleaned up—hence the name “clean slate”. What I think, under that legislation, Parliament at that time considered was the possibility that a person seeking information about prior convictions might try to circumvent the benefit of the legislation by saying, “I not only require you to tell me your current convictions but ask you to disregard your rights under”—in that case—“the clean slate legislation.” It is important when considering this bill, and the fact that people will wish to use it to remove the more stigmatic convictions that they have, that they should not be imposed upon by others and invited to abandon the rights they will have under the bill.

You can imagine a situation in which an employer, a private organisation, or whoever, who is seeking information about a person because they want to understand about them and perhaps understand about their past track record, may be brazen enough to say, effectively, “We know you have these rights and the benefit of this legislation, but we will insist that you abandon your rights under the legislation, and we’re going to demand that you provide this information. And, if you don’t, we will, effectively, discriminate against you.”

To allow an employer or an organisation to do that would be to defeat the objective of the legislation, which is to remove discrimination and stigma associated with a conviction for a homosexual offence that is, in this day and age, not an offence. So it plays a very important role, and the members of the committee are to be congratulated for having the wisdom to insert that provision in there.

How would it be enforced? Well, the reality is, it would require a complaint to the police, because if an is organisation seeking information which they’re not entitled to—and, in fact, seeking information which the person being asked to supply is not obliged under this legislation and, in fact, is protected from disclosing—that organisation should not be able to conduct themselves in that way. They should not be able to defeat the individual person’s rights and the benefits they would have under this legislation. So they would lay a complaint with the police, and the penalty is set at $10,000, which is an indication from this Parliament that discriminatory action is seen as a serious thing by this Parliament—that one citizen or one legal entity should not be able to discriminate against an individual.

My colleague Dr Duncan Webb asked about clause 5, and the fact that that clause, which defines the historical offences, which are the subject of the legislation, is very specific about the particular offences which can be expunged on application to the Secretary for Justice. And Dr Webb asked the obvious question: why could other offences that may have in their commission related to homosexual conduct not be the subject of an application for expungement?

And the problem with that is, if you consider offences like disorderly conduct or exposure—I can’t remember the technical nature of the offence—that it would add considerable complexity to the job of the Secretary for Justice to consider applications for offences that can be applied in a number of situations, for many of which there will be legitimate reasons for the convictions, and for which there will be no legitimate reasons to not continue to record that conviction. You know, an offence like disorderly conduct has an enormous breadth of application and so, although the conduct to which it might apply might be homosexual conduct, which this bill in its specificity is seeking to avoid the stigma associated with, to determine whether or not the particular offence on that person’s record relates to homosexual conduct or something else would add considerable effort and complexity and it would make the bill unworkable.

So I think the committee has struck the right balance in ensuring that the bill remains workable and achieves its fundamental objective, which is removing the stigma of criminal offences from a day and age when it was regarded as criminal—which, in this day and age, is not—and to then therefore remove the stigma and shame associated with that.

If I could turn to the question raised by the Hon Kris Faafoi in his contribution, which is the definition of “representative” under clause 4. And he is right. The definition of “representative” goes through a number of steps. There are the legal agents that a person may have, and then there are the family members, and there is your spouse and civil union partner and what have you, and then there are family members—a parent, sibling, or child. And the quite legitimate question is: why not a grandchild, given that the bill will apply to offences that go back to 4 August 1908? And if there is somebody who has a conviction from 1909, in this day and age, it is most likely going to be a grandchild who will want to make the application.

But I think he also touches on the answer to the question, which is that subclause (d) of that definition of “representative” allows the Secretary for Justice to exercise a discretion to allow somebody who does not fall into the definitions in paragraphs (a), (b), and (c) to also make the application and, therefore, have the application considered. And I think that is the basis on which a grandchild, or some other—it might be a nephew or a grandnephew or grandniece who might make the application.

I think what the Secretary for Justice will look for is a familial link, a proximity of the person making the application to the person who has the conviction, on the basis that a conviction of this nature in the unenlightened age when these convictions were happening is as much a source of shame to the family as it is to the individual itself. When the individual has passed on—they’re deceased—it is possible for that family to continue to wear the embarrassment and the shame of that conviction, which they should not. So I think the member should be reassured, if I can do so, that the Secretary for Justice will be expected to take a fair, large, and liberal interpretation of his or her discretion under paragraph (d) to ensure that this bill is of value to those who’ve suffered the ignominy of a conviction for conduct which today is not at all regarded as criminal.

So I thank the member for bringing that issue to the attention of the committee, but I consider that it is covered off by the other provisions in the bill.

I move, That the question be now put.

Thank you, Mr Chair. Thank you for the opportunity to talk on this particular bill. As I get up here—and I have listened to a few of the contributions from some of the members in this Chamber—I just want to remind the committee that we were once part of the problem. Actually, we were the ones that made the laws that everybody had to follow. So as we praise the work that we do, I just caution that we also remember that we were actually once part of the problem. For that reason, I’m happy and I’m sad to stand here and take a call on this. I’m standing on behalf of all of those people that can’t be here today, of course, but who have had to live with the guilt and the shame of having a conviction under this particular Act of Parliament. It’s for that reason that I so proudly supported the marriage equality bill back in 2014, so that people could understand that things were changing, that times were changing, and I’m happy to say that Parliament, through this particular bill here, is also changing as well.

If there’s somebody in particular that needs some thanks just in relation to this particular bill, it is the petition of Wiremu Demchick and the 2,111 people that signed his petition that came before the House, and I just want to just read it out: “That, in the matter of those who were convicted of consensual”—consensual—“homosexual acts prior to the Homosexual Law Reform Act 1986, [that] the House … promptly issue an official apology to those convicted, and (b) pass legislation which sets out a process for reversing the convictions of those convicted, both living and deceased, in a manner which upholds the mana and [the] dignity of those convicted.” I would like to commend Wiremu and all of those people that signed this particular petition to bring this bill before the House. If anybody needs thanks, it’s actually them.

I want to also just raise a point about what I see is very necessary—the ability for somebody to apply on somebody else’s behalf. I just wanted to touch on that wee point because there are many people who have had convictions against their name for a long time now who have since passed on. For that reason, it is only right that somebody be able to apply for this expungement on their behalf. So I commend the committee and also Minister Little for making sure that that’s a key part of is so that we can have representatives that can step in on behalf of their family member, their friend, or their whānau to be able to make things right.

A thousand people—they say—may be eligible to apply under this scheme based on data that has been gathered by Statistics New Zealand, and for that reason I look forward to monitoring the process and seeing the names of people coming out of the shadows who have been firmly standing in the shadows for quite some time for those prosecutions that were held between 1965 and 1986.

I do want to just ask the Minister one question about the compensation question. I know that I’ve been spoken to by some members of the community, of the rainbow community in particular. I’m just asking that question around compensation. I understand firmly that that’s not part of this, but I did want to know, so that I can report back to the community about why there wasn’t the question of compensation raised—and also that difference between an expungement and a pardon. To normal people out there, that don’t sit here in the hallowed halls of Parliament, they may not understand the difference between those two particular terms. So just a bit of clarification around that would also be very welcome.

I’m happy to understand that this is part of an international movement of countries that are undertaking this process. I understand that our scheme is particularly mirrored on the scheme that was put through in Australia. We’ve gone and aligned our particular bill that way. Of course, it has been done in England and in Wales too, so I was just trying to understand what exactly the differences were in those two, as I’ve only recently come before this particular piece of legislation. So if we could just have a wee bit of an explanation as to what the difference was between the England and Wales situation and why we chose to align ourselves with the Australians, that would be great. Thank you.

I move, That the question be now put.

Thank you, Mr Chair. I just want to take a very quick call, and, in fact, just add a couple of questions—supplementaries, I guess—to the questions of the member that just sat down, Tamati Coffey, because they revolve around the same topics.

The first was the representative—and I know it’s been brought up quite a number of times, and you have answered questions, Minister Little. First of all, I think it’s actually one of the most important clauses that’s in there, because it actually allows the family members to be able to get some reconciliation for their passed loved ones. I know that the Hon Kris Faafoi asked that there should be some consideration about widening the scope for the family members, and I know that you answered that question.

I’m wondering if there’s been any consideration—and I’m specifically talking about clause 15(3) and (4). First of all, clause 15(3) states, “the Secretary must decide, as soon as is reasonably practicable, whether the person can represent the convicted person”. I know that there’s the consideration, about the family, in the other considerations as well, but is there any situation where they do lie, let’s just say, within that framework and be a direct descendent, i.e., a child or a grandchild or a brother or a sister, that wouldn’t necessarily be an able representative of that individual? I guess that moves on to clause 15(4) where it says, “The Secretary’s decision must be based on whether the representation concerned would be in the interests of the deceased convicted person.”

So in what circumstances—and I know that the circumstances of those individuals and their families would be quite varied and unique. So whether that comes down to the Secretary looking at them as individual, separate, very unique circumstances, or whether there are a few boundaries or rules or regulations or considerations that are existing now that would be applied and used to filter before it got to that unique individual stage. So that’s the first question for the Minister.

The second one also revolves around the “no entitlement to compensation”. That question has been brought up a couple of times and the Minister has answered. From what I can recall, the Minister has explained it by saying that the main reason, if not the only reason, is because it’s quite problematic. I’m not disagreeing with that at all, but I’m wondering if there has been consideration, through the select committee phase, where the guidelines around compensation that already exist from the Ministry of Justice were used and/or considered, to justify no compensation.

From what I’ve read of what was on the Ministry of Justice website, the clear difference, I think, or one of the differences between this situation we’re talking about in this bill to normal compensation, was that an individual was imprisoned because they broke the law and then they found that they didn’t break that law. Whereas in this situation, the law itself was expunged, even though they did break the law.

I know it sounds a little bit ambiguous, but I think that if the Minister could explain whether or not that part of the Ministry of Justice guidelines was used, or whether it was just simply because it was problematic, and that was the end of the conversation. So those are the two questions, if I could add them to the mix. Thank you.

Thank you, Mr Chair. If I could just now respond to the latest set of queries. So to the honourable member Tamati Coffey, who has raised a couple of questions, one about compensation, and said, effectively, why not? Perhaps I’ll take the opportunity, in answering Mr Coffey’s question, to answer also Darroch Ball’s question.

As I understand it, it occupied a significant amount of the Justice Committee’s time to consider the issue of compensation. Submitters raised it, and it’s a legitimate question to ask. Given that the law changed, people have been tarred with a criminal sanction for conduct that certainly is not criminal today and we would argue should never have been criminal. But that was a less enlightened age, and in 1986 we became enlightened.

The difficulty with compensation is that there will be different circumstances for different people that might call for varying levels of compensation, and that then makes it very complex and very complicated, and so the decision was made not to provide for compensation. It would be equally unfair to say, “Right. Everybody gets the same amount.”, if the Government were of a mind to do that, but that would not take into account the circumstances that some faced. For some, the humiliation may have been greater because of the nature of the arrest, the circumstances in which they were detained, the length of time they were incarcerated, and whether or not they were subjected to further prejudice and discrimination while they were in the State’s custody. So there’s huge complexity about a formula to achieve compensation, and in the end the judgment was that it was just too hard.

I think Mr Ball makes a very important point, which is that right now we have compensation for those who are imprisoned wrongfully and it is then discovered that the offence for which they are imprisoned they actually never committed. They never committed that act which led to the conviction that led to them being imprisoned. They should, therefore, never have been detained at all in prison and they are compensated for that.

What we’re doing here is saying that there was conduct that was regarded as criminal conduct once upon a time in our history, whether we now agree with that or not. We clearly disagree with it now, because in 1986 we passed a law saying that that conduct is no longer criminal. Now we are taking the further step of saying that those who were criminalised by that conduct but who were otherwise innocent, we are going to expunge the record of that criminality. But the act happened. The conduct happened. We might be able to expunge the criminal record, but we can’t expunge the act that in fact took place.

That segues nicely into the second question asked by Mr Coffey, which was the difference between an expungement and a pardon. The expungement means off the criminal record. It says, “This record should not exist. We’ve made the enlightened decision that even though you were convicted because of the conduct that you engaged in, at a time when that conduct was criminal, it is no longer criminal. You should not continue to carry the shame and humiliation of a criminal record, because in this day and age we don’t regard that conduct as criminal, so we will expunge the record.”

A pardon applies where you were accused of conduct which was criminal but you were later discovered to have never committed that conduct, and therefore should never have been criminalised in that sort of way. So that is why we talk about expungement in these circumstances. We don’t talk about a pardon, because the conduct, in fact, happened, even though that conduct happening today would not be criminal and would therefore not attract a criminal sanction. But there is that difference. On that basis, I think the committee has done a very good job in distilling out what is the appropriate action to take. It is an expungement, and that gets us to where we are.

I know Mr Coffey referred to the petition that also called upon the Parliament to make an apology to those convicted. The Hon Amy Adams was the Minister who took up this legislation originally, sponsored it, brought it to the House, and in the first reading she provided the apology that was called for in the petition. I think when we get to the third reading, we will no doubt underscore that, because I think that is a legitimate thing to do.

I move, That the question be now put.

Motion agreed to.

Parts 1 and 2, schedules 1 and 2, and clauses 1 and 2 agreed to.

House resumed.

Bill reported without amendment.

Report adopted.