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Expungement Scheme questions and answers

What type of offences are covered by the scheme?

The scheme applies to sexual and public morality offences that criminalised homosexual conduct in the past. To be expunged the conduct must not be an offence under today’s laws.

There is no list of offences but the scheme is likely to cover offences such as:

  • consensual 'buggery' between adults
  • consensual 'acts of gross indecency' between two consenting males
  • indecent assault of a person who consents to the conduct
  • loitering or soliciting for homosexual purposes
  • some offensive behaviour charges, for example if the conduct would no longer be considered offensive by modern Australian society.

The scheme will also apply to attempts or complicity offences (for example attempting or aiding and abetting an act of gross indecency).

What if I was found guilty but not convicted?

Sometimes a person may have pleaded guilty or been found guilty of an historical homosexual offence but the court put the accused on a ‘bond to be of good behaviour’ rather than ‘recording a conviction’.

A finding of guilt may still be listed on a criminal record check and so the scheme covers convictions and 'findings of guilt'.

Does the scheme cover interstate convictions?

This scheme only applies to convictions or findings of guilt that were recorded in Victoria and appear on a Victoria Police History Check.  If the offence occurred in another state or territory, an application cannot be made under this scheme. You will need to contact the other state or territory to see if they have an expungement scheme.

Who can apply?

  • A person who has a conviction or finding of guilt for an historical homosexual offence, or their delegate (if the applicant has a guardian, litigation guardian or enduring power of attorney); or
  • An appropriate representative of a deceased person convicted or found guilty of an historical homosexual offence (in order of priority) such as:
    • the spouse or a person in domestic relationship with the deceased person at the time of their death
    • a son or daughter of the deceased person aged over eighteen years of age
    • a parent of the deceased person
    • a sibling of the deceased person aged over eighteen years of age
    • an executor named in the will of the deceased person
    • a personal representative (such as guardian or enduring power of attorney) of the deceased person at the time of their death
    • a person determined to be an appropriate representative of the deceased person by the Secretary of the Department of Justice and Regulation or their delegate.

When does this scheme commence?

The scheme commenced operation on 1 September 2015.

How do I apply?

You can download application forms from the Expungement Scheme page. The application is made free of charge. There are two types of application forms:

  • Applicant or their delegate - if you are applying for yourself or are representing someone as a guardian or as power of attorney.
  • Appropriate representative of a deceased person - if you are applying on behalf of someone who has died.

The application process is in three parts to ensure that your privacy is protected and only necessary information is collected:

Part A – Proof of Identity: All applicants or appropriate representatives need to have their identity documents certified to establish their right to make the application and access this information.

Identity documents can be certified by taking the original documents and a photocopy of this material to an authorised certifier. The authorised certifier will verify that the photo identification is a true likeness of the applicant or appropriate representative. The authorised certifier will sign and date each photocopy of the identity documents.

Details of where documents can be certified, such as Justice Service Centres or by a Justice of the Peace, are outlined in the Part A form.

Part B Application: All applicants or appropriate representatives must complete this form.  This part does not need to be certified but the consent section  must be signed and dated. This consent allows us to make enquiries about this matter on the applicant's behalf and request a criminal history check.

Part C Further Detail: We will inform you if you need to complete this section if further information is required.

The information we collect will help us locate the official records. We understand that these matters took place a long time ago and that applicants may not remember a lot of detail. Please complete the application form to the best of the applicant's ability.

How does the application process work?

  1. You will lodge an application, consisting of Part A and Part B.
  2. We will request a Victoria Police History Check on behalf of the applicant.  This information will be sent to us and we will provide it for you to review.
    If you prefer, you can apply directly to Victoria Police for a full Police History Check (for personal use category) before making an application under this scheme. This means that, at first instance, only you receive a copy of the Police History Check.  However, you must pay the Victoria Police fee (there is no cost associated with lodging an application under the scheme).  Further information is available from Victoria Police.
  3. If you wish to proceed with the application after receiving the Police History Check information, we will then ask Victoria Police, the Office of Public Prosecutions and the relevant court to locate more detailed records regarding the conviction or finding of guilt. You will get access to this material.
    In some instances, we may also verify information with the Registrar of Births, Deaths and Marriages Victoria.  For example, we will need proof of death for applications made on behalf of a deceased person. 
  4. If further information is required to assess your application, we will ask you to complete Part C Further Details.

Will I have to give evidence or go to court?

No. Your application is assessed on the official records held by the police, prosecutors or the courts.

If a conviction or finding of guilt relates to an offence that involved another person, the official records must indicate that both parties consented and were of appropriate age.  This ensures that only appropriate matters are expunged and not convictions for behaviour that is still a crime today.  We will apply the current laws about the age of consent.

Where the offence does not involve sexual activity with another party, such as a conviction for 'offensive behaviour', the conduct must not be considered offensive in today's society. For example, if a person had been charged with offensive behaviour for kissing their same sex partner in public, this would no longer be considered offensive in today's society.

Who will decide the outcome of my application?

The Secretary of the Department of Justice and Regulation or their delegate will decide whether your application is successful or not.  The Secretary must be satisfied that the conduct would not be an offence today, was consensual and all parties were of age.

We will advise you of the Secretary’s decision and the reasons for the decision.

The application process might take some time, as we need to request a Victoria Police History Check, locate historical records and assess your application. However, we will deal with your application as quickly as possible.

Can I be confident that the application process is confidential and respects my privacy?

Yes. Access to your application will be restricted to the Secretary, those advising the Secretary, the scheme’s small Secretariat and the agencies who are searching for your records – all of whom are bound by strict confidentiality obligations.   In some cases, we may also verify your information with the Registrar of Births, Deaths and Marriages Victoria. 

Part 8 of the Sentencing Act 1991 creates a criminal offence for any unauthorised disclosure about an application.

This scheme only requests information that is required to assess your application.

Your application will be handled sensitively and we will be mindful of your confidentiality and privacy at all times.  We will communicate with you by your nominated preferred method of contact and all material will be sent to you discreetly and marked ‘private and confidential’.

Will records be able to be located for all historical convictions?

Maybe not. We are looking for historical records stored in various locations by multiple agencies.  Therefore, we anticipate that there may be cases where we cannot find records.  An exhaustive search will be conducted to locate any material.

There may also be cases where the records do not provide much detail about the conviction or finding of guilt.  In such circumstances, we may request further information that supports your application and ask you to complete the Part C - Further Details application form.

What happens if an application for expungement is successful?

If a conviction or finding of guilt is expunged, police and court records will either be annotated to show that the conviction is expunged or electronic records may be amended or deleted.

A person with an expunged conviction may legally claim not to have been convicted, is not required to disclose that conviction for any purpose and cannot be denied any post, appointment or privilege due to that conviction.

An expunged conviction or finding of guilt will not show up on a Victoria Police History Check.

Discrimination on the basis of an expunged homosexual conviction is prohibited under the Equal Opportunity Act 2010.

If an application is unsuccessful, can the decision be appealed?

Yes.  An applicant or appropriate representative can apply to the Victoria Civil and Administrative Tribunal (VCAT) for review of the Secretary’s decision.

The agencies that hold the official records, such as the police or prosecuting authority, can also appeal the decision of the Secretary if they think that a mistake has been made. 

An appeal must be lodged within 28 days of being notified of the decision of the Secretary.

Where can I find out more information about the scheme?

The legislation governing the scheme, Part 8 of the Sentencing Act 1991, is available to download from Victoria Law Today.

The Sentencing Amendment (Historical Homosexual Convictions Expungement) Act 2014 was passed by both houses of Parliament in late 2014. The second reading speech and the memorandum that explains each section of the legislation can be found at the Parliament of Victoria website.

Is there anyone I can contact if I need assistance or support during the application process?

We understand that it may be distressing to recall past events during this application process.

You can access support services by contacting the organisations below that are able to provide assistance such as counselling.

Switchboard

Switchboard is an organisation that offers a confidential and anonymous telephone counselling, referral and information service for the Victorian lesbian, gay, bisexual, transgender, intersex and queer communities.

Telephone: 1800 184 527

Hours of operation: 3pm to 2am 7 days per week

Webchat: QLife website

Gay Men’s Health Centre

Gay Men’s Health Centre provides a professional counselling service for members of the gay, lesbian, bisexual and transgender communities.

Telephone: (03) 9865 6700 or 1800 134 840

Hours of operation: Monday to Thursday 9am to 8pm and Friday 9am to 4pm

Lifeline

Lifeline is a 24-hour service offering support to those experiencing a personal crisis.

Telephone: 13 11 14

Hours of operation: 24 hour 7 day a week crisis service.

Legal assistance

Free and confidential legal advice is available through the Human Rights Law Centre (HRLC).

The HRLC's expungement team is staffed by LGBTIQ-identifying lawyers and includes a volunteer lawyer with personal experience of the climate and police attitudes before the old laws were repealed.

The HRLC offers general information, advice and legal support throughout the application process.

Contact (03) 8636 4458 or email expungement@hrlc.org.au

Any other questions

Please contact the Expungement Scheme Secretariat on (03) 8684 0818 or via email.

 


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Author: Department of Justice and Regulation
Publisher: Department of Justice and Regulation
Date of Publication: 2015
Copyright: State of Victoria, 2015.

 

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