Table Of Contents

Criminal Records Amendment (Historical Homosexual Offences) Act 2014 No 69

An Act to amend the Criminal Records Act 1991 to allow convictions for certain homosexual sexual conduct offences to become extinguished; and for related purposes.
2   Commencement
This Act commences on a day or days to be appointed by proclamation.
Schedule 1 Amendment of Criminal Records Act 1991 No 8
[1]   Section 3 Objects of this Act
Insert after section 3 (2):
  
(3)  The Act also provides for a scheme to enable certain convictions for a number of decriminalised homosexual sexual conduct offences to become extinguished.
[2]   Section 4 Definitions
Insert after section 4 (2):
  
(2A)  In this Act, a reference to an extinguished conviction includes a reference to the charge to which the extinguished conviction relates.
[3]   Section 4 (4)
Insert after section 4 (3):
  
(4)  Notes included in this Act do not form part of this Act.
[4]   Part 4A
Insert after Part 4:
  
Part 4A Extinguishing convictions for historical homosexual offences
19A   Definitions
In this Part:
eligible homosexual offence means any of the following offences:
(a)  the former offences under sections 78K, 78L, 78Q, 81, 81A and 81B of the Crimes Act 1900,
(b)  the former offences under sections 79 and 80 of the Crimes Act 1900 (before those offences were amended by the Crimes (Amendment) Act 1984), but not any offence relating to bestiality,
(c)  the former offences under section 12 of the Police Offences Act 1901 and under section 7 of the Summary Offences Act 1970, but only if the former offence was constituted by:
(i)  a person engaging in sexual intercourse or another form of sexual activity with another person of the same sex, or
(ii)  a person procuring another person of the same sex to engage in sexual intercourse or another sexual activity with a person of the same sex,
(d)  an offence prescribed by the regulations for the purposes of this definition,
(e)  an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a), (b), (c) or (d).
Secretary means the Secretary of the Department of Justice.
19B   Application to have eligible homosexual offence convictions extinguished
(1)  A person who has been convicted of an eligible homosexual offence may apply, in accordance with the regulations, to the Secretary for the conviction to become extinguished.
(2)  An application under this section must state:
(a)  the name, address and date of birth of the applicant, and
(b)  the name and address of the applicant at the time of the conviction, and
(c)  so far as is known to the applicant, the time when and the place where the conviction was made, and
(d)  any other information that the Secretary requires.
Note—
It is an offence under Part 5A of the Crimes Act 1900 to knowingly provide false or misleading information or to knowingly produce documents that are false or misleading in an application to a public authority.
(3)  If the convicted person has died, an application under this section may be made on behalf of the person by:
(a)  the convicted person’s legal personal representative, or
(b)  a spouse, de facto partner, parent or child of the convicted person or a person who was in a close personal relationship with the convicted person immediately before the convicted person’s death.
19C   Eligible homosexual offence convictions may be extinguished
(1)  A conviction for an eligible homosexual offence becomes an extinguished conviction when the Secretary, by notice in writing given to the applicant, decides that he or she is satisfied that the other person involved in the sexual activity constituting the offence:
(a)  consented to the sexual activity, and
(b)  was of or above:
(i)  the age of 16 years, or
(ii)  if the other person was under the special care of the convicted person (within the meaning of section 73 (3) of the Crimes Act 1900)—the age of 18 years.
Note—
Section 73 (3) of the Crimes Act 1900 provides that a person (the victim) is under the special care of another person (the offender) if, and only if:
(a)  the offender is the step-parent, guardian or foster parent of the victim or the de facto partner of a parent, guardian or foster parent of the victim, or
(b)  the offender is a school teacher and the victim is a pupil of the offender, or
(c)  the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, or
(d)  the offender is a custodial officer of an institution of which the victim is an inmate, or
(e)  the offender is a health professional and the victim is a patient of the health professional.
(2)  Before making a decision under this section, the Secretary may, by notice in writing, request the applicant to provide further information specified in the notice. The Secretary may refuse to make a decision under this section if the request has not been complied with.
(3)  If the Secretary intends to make a decision that will result in the conviction for an eligible homosexual offence not becoming an extinguished conviction, the Secretary must:
(a)  by notice in writing, inform the applicant of that intention, and
(b)  provide the applicant with a copy of any historical records relating to the conviction in the possession of the Secretary, and
(c)  give the applicant 14 days from the date of that notice to submit further information to the Secretary regarding the application.
(4)  The Secretary is not to hold an oral hearing for the purpose of making a decision under this section.
(5)  The Secretary may delegate the exercise of any function of the Secretary under this section (other than this power of delegation) to:
(a)  any member of staff of the Department of Justice, or
(b)  any person, or any class of persons, authorised for the purposes of this section by the regulations.
19D   Persons and bodies to provide information to Secretary
(1)  The Secretary may, by notice in writing, require any of the following persons or bodies to provide the Secretary with the information requested in the notice for the purposes of making a decision under section 19C:
(a)  a person employed in the government sector (within the meaning of section 3 of the Government Sector Employment Act 2013),
(b)  the officer in charge of the Criminal Records Section of the NSW Police Force,
(c)  a court,
(d)  the Director of Public Prosecutions,
(e)  any other person or body prescribed by the regulations.
(2)  It is the duty of a person or body referred to in subsection (1) to comply with a notice under this section.
(3)  The Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 do not apply in relation to the disclosure of personal information or health information to the extent that the information is provided under this section to the Secretary.
(4)  The Secretary and any person acting under the direction of the Secretary are exempt from any requirements of the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 relating to the collection, use or disclosure of personal information or health information to the extent that the information is provided under this section.
19E   Administrative review by Civil and Administrative Tribunal of decision of Secretary relating to conviction
(1)  A person who has made an application under this Part may apply for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Secretary under section 19C (1).
(2)  If a person has made an application under this Part and has not, within 9 months, received notice of a decision under section 19C (1), the Secretary is taken to have made a decision that he or she is not satisfied of the matters referred to in that subsection.
19F   What are the consequences of a conviction becoming an extinguished conviction?
(1)  If a conviction of a person is an extinguished conviction:
(a)  the person is not required to disclose to any other person for any purpose information concerning the extinguished conviction, and
(b)  a question concerning the person’s criminal history is taken not to refer to any convictions of the person which are extinguished convictions, and
(c)  in the application to the person of a provision of an Act or statutory instrument:
(i)  a reference in the provision to a conviction is taken not to be a reference to any convictions of the person which are extinguished convictions, and
(ii)  a reference in the provision to the person’s character or fitness is not to be interpreted as permitting or requiring account to be taken of extinguished convictions.
(2)  This section has effect despite:
(a)  sections 77 (4), 79 (3) and 135 (3) of the Health Practitioner Regulation National Law (NSW), and
(b)  any Act that provides that information relating to spent convictions may be disclosed despite this Act.
19G   Unlawful disclosure of information concerning extinguished convictions
(1)  A person who has access to records of convictions kept by or on behalf of a public authority and who, without lawful authority, discloses to any other person any information concerning an extinguished conviction is guilty of an offence.
Maximum penalty: 50 penalty units or imprisonment for 6 months, or both.
(2)  It is not an offence for an archive or library (or an authorised officer of an archive or library) to make available to a member of the public, or to another archive or library, in accordance with the normal procedures of the archive or library, material that is normally available for public use and that contains information relating to an extinguished conviction.
(3)  It is not an offence for a public authority or other government agency that has a record of an extinguished conviction (or an authorised officer of the authority or agency) to make information about the conviction available to the person who was convicted.
(4)  It is not an offence for the Secretary (or any person acting under the direction of the Secretary) to inform the NSW Police Force or any other public authority that holds information regarding convictions that a particular conviction has become an extinguished conviction.
(5)  This section has effect despite:
(a)  sections 77 (4), 79 (3) and 135 (3) of the Health Practitioner Regulation National Law (NSW), and
(b)  any Act that provides that information relating to spent convictions may be disclosed despite this Act.
19H   Improper obtaining of information concerning extinguished convictions
A person who, fraudulently or dishonestly, obtains or attempts to obtain information concerning an extinguished conviction from records of convictions kept by or on behalf of a public authority is guilty of an offence.
Maximum penalty: 50 penalty units or imprisonment for 6 months, or both.
19I   Conviction may cease being an extinguished conviction
(1)  If the Secretary is satisfied that a conviction became an extinguished conviction by reason of an application that included false or misleading information, or documents that are false or misleading, the Secretary may determine that the conviction is no longer an extinguished conviction.
(2)  The conviction ceases to be an extinguished conviction on and from the date of that determination.
(3)  The Secretary must notify the convicted person of a determination under this section.
(4)  A person whose conviction is the subject of a determination by the Secretary under this section may apply for an administrative review under the Administrative Decisions Review Act 1997 of the determination.
[5]   Section 22 Act does not affect certain other lawful acts
Insert “, extinguished” after “spent”.
[6]   Section 23 Destruction of records
Insert “an extinguished conviction,” after “a spent conviction,”.