Historical Homosexual Convictions Expungement Act 2018 (WA)

The Historical Homosexual Expungement scheme enables eligible applicants to apply for the expungement of historical homosexual convictions under the Historical Homosexual Convictions Expungement Act 2018 (WA) (the Act).

You are eligible to apply if you have a conviction for a historical homosexual offence listed in Schedule 1 of the Act, refer to the Frequently Asked Questions below for the schedule.

To apply

Applications must be made in writing to the Department of Justice by submitting the below application form, consent to disclose form and proof of identity.

Application Form

Applications must include the following information, as set out in section 6 of the Act:

You should also clearly state your consent for your official criminal records to be disclosed to the Director General of the Department so that a decision on your application can be made.

Applications will only be processed once a signed copy of the Consent to Disclosure of Records has been received and proof of identity requirements have been met.

The Director General may ask you for more information during the course of considering your application. Please submit the completed application and all supporting documentation via one of the following options:

If you require any assistance please contact the Office of the Commissioner for Victims of Crime on (08) 9264 9877.

Information and Frequently Asked Questions

  1. Am I eligible to apply?

You are eligible to apply if you have a conviction for a historical homosexual offence listed in Schedule 1 to the Act. Those offences are:

Section

Dates in force

Description

181(1) or (3)

Before 23 March 1990

Carnal knowledge of any person against the order of nature or permitting a male person to have carnal knowledge of him or her against the order of nature

184

Before 21 September 2002

Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or another male person, whether in public or private

186(1)(a)

23 March 1990 to 21 September 2002

Any person who, being the owner or occupier of any premises, or having or acting or assisting in the management or control of any premises, induces or knowingly permits any person of such age as in this section is mentioned to resort to or be in or upon such premises for the purpose of being unlawfully carnally known by any man, whether a particular man or not, is guilty of a crime… if the person is… a male under the age of 21 years

187(2)

23 March 1990 to 1 August 1992

Any male person who has or attempts to have carnal knowledge of a male under the age of 21 years

189(2)

23 March 1990 to 1 August 1992

Any male person who unlawfully and indecently deals with a male under the age of 21 years or who procures such a male person under the age of 18 years to so deal with him or another male child, or who permits such a male person under the age of 21 years to so deal with him

322A

1 August 1992 to 21 September 2002

Sexual offences against a juvenile male (being a male between the ages of 16 and 21 years)

You may also be eligible if your conviction is for an offence of attempting, conspiring with another person, or inciting another person to commit an offence listed in Schedule 1. For example, an offence under section 182 of The Criminal Code as in force until 1988 would be eligible for expungement.

The Historical Homosexual Convictions Expungement Act 2018 is available for further details.

  1. What if my conviction isn’t listed in the Schedule?

At this stage, only convictions under the section of The Criminal Code during the dates listed in the Schedule to the Act (as set out above) are eligible for expungement. However, the Act does provide a head of power for Regulations to be made. Under the Regulations, the list of eligible convictions can be expanded to include others not currently listed in the Schedule.

If you were convicted for a historical homosexual offence involving consensual homosexual activity under a different section of The Criminal Code or another Act of Parliament which is not listed in the Schedule, you should write to the Attorney General, Hon John Quigley MLA, outlining the details of your conviction, including the section number of the Act you were convicted under.

  1. Can I apply on someone’s behalf to have their conviction expunged?

Section 5 of the Act lists the people who can apply on behalf of someone else. Where the eligible person is still alive, application may be made on their behalf by:

Where the eligible person has died, application may be made by a person who is 18 years of age or over and is:

The other person involved in the conduct may also apply on behalf of the deceased eligible person – meaning, if you have a historical homosexual conviction and the person who was convicted with you is now deceased, you can apply for expungement on behalf of yourself and the other person.

  1. How can I apply?

Applications must be made in writing to the Department of Justice. Applications must include the following information, as set out in section 6 of the Act:

You should also clearly state your consent for your official criminal records to be disclosed to the Director General of the Department so that a decision on your application can be made.

The Director General may ask you for more information during the course of considering your application.

  1. What Proof of Identity Documents am I required to submit?

When submitting an application you must provide proof of your identity (see Minimum Identity Requirements on the Application Form.) This applies to those applicants applying on behalf of yourself and or on behalf of someone else (eligible person). If applying on behalf of someone else you must provide minimum identity requirements for both you and the eligible person (100 point identification check).

All documents must be certified true original copies. A certified copy means a document that has been certified as a true copy of an original by a person listed in Schedule 2 of the Statutory Declarations Regulations 1993 (Cth) which is available from the Federal Register of Legislation website and search for "Statutory Declarations Regulations 1993".

If applying on behalf of someone else you will also need to provide confirmation of your relationship to the eligible person.

If there is a change of name you may be requested to provide further identification documents as evidence of a name change.

  1. Who can sign and certify Proof of Identity Documents?

List of persons authorised to certify is available on page 6 and 7 on the application form as well as from the Department of Home Affairs website.

  1. How will the determination be made?

The scheme is an administrative process. Once your application has been received, the Director General of the Department of Justice will request copies of your official criminal records relating to the conviction from the following agencies as relevant:

Once those records have been retrieved, the Director General is required to determine the application, taking into account the following considerations:

The Director General must be satisfied on both of the above points before he is able to expunge a conviction. He must consider whether the parties involved in the conduct consented, and the relative ages of the people involved.

  1. What is the practical effect of having a conviction expunged?

Once your conviction is expunged, you will no longer need to disclose it, including when giving evidence under oath about your criminal history. An expunged conviction is no longer taken to form part of your official criminal record.

  1. How long will it take for my application to be processed?

 

This will depend on how difficult it is to locate the official criminal records relating to your conviction. It is most likely those records will be held in offsite storage by the WA Police and the Department of Justice’s Courts and Tribunal Services Branch.

Given the number of records offsite and the length of time that may have passed since you were convicted, it is important that you provide as much information as possible with your application to assist the Department in locating your records. That information may include the date of the conviction, the location of the courthouse, the full name of you and any other parties involved, the name of the conviction under The Criminal Code, and other identifying information.

  1. My application has been declined. What can I do?

If your application to have a historical homosexual conviction expunged has been denied under section 11(2)(b) of the Act, you can seek review of that decision to the State Administrative Tribunal (the SAT). Your application for review must be lodged within 28 days of receipt of the decision that your application has been denied.

You can contact the SAT directly to lodge your application for review. The SAT’s website is accessible at http://www.sat.justice.wa.gov.au/.

  1. I have been informed that my expunged conviction is going to be revived. What can I do?

You can also seek review of that decision – made under section 12(1) of the Act – to the SAT by following the same process above.

  1. What would lead to an expunged conviction being revived?

If the decision maker has been advised that an expunged conviction was expunged on the basis of false or misleading information, it is open to the decision maker to reconsider that expungement application. The original applicant will be advised and will have the opportunity to provide a written submission. Should the decision maker decide to revive the conviction then all references to the conviction having been expunged will be removed. The practical effect of this would be that the conviction would once again form part of a person’s official criminal record and would need to be disclosed.

  1. I have a question that hasn’t been answered here. Who can I contact?

Please contact the Department of Justice

Office of the Director General
Level 23, David Malcolm Justice Centre
28 Barrack Street
PERTH WA 6000

Last updated: 15-Oct-2018

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