Erasing unfair convictions for gay men

In 1977, long time gay rights activist Jamie Gardiner wrote a brief seeking expungement of homosexual convictions. Last week, he sat in Victoria’s parliament and watched it happen. Here he reflects on his decades long journey from campaigning for the decriminalization of homosexuality in the 1970’s to the challenges that reamin today.

It was surreal. Robert Clark, Attorney-General in the LNP Coalition Government, was publicly acknowledging—as he introduced a Bill to expunge historical gay sex convictions—that they “should never have been a crime”. Known for his previous vehement opposition to LGBTI rights, the Attorney’s words suggested a remarkable, welcome reversal, both personally and for the government. So here I was, in the Speaker’s Gallery, listening to the implementation of a reform I first put forward almost forty years ago. It had been a long journey.

Although expungement has long been a goal, this final result has been quite quick. Many people have contributed.

I put expungement of old gay sex convictions on the agenda of the Attorney-General’s Advisory Committee on GLBTI Issues around 2001, but the other reforms sought by the LGBTI community were ranked ahead, each term. Many vital reforms were achieved, but the old convictions lingered on. In 2009 Dr Paula Gerber invited me to address her students about the protection of sexual minorities in human rights law. While surveying the journey I noted the lingering harm old convictions did to those persecuted under the past bad laws and prejudiced attitudes. Tom Anderson’s case, discussed in Righting Historical Wrongs, figured prominently.

The path to reform often depends on coincidences and quirky connections, and this may have been one. For it was Paula Gerber who noticed a small report of a UK omnibus reform in mid 2012 that included a measure to “disregard,” in their words, old gay sex offences. Following this up she published “Wiping the slate clean: historic convictions for gay sex must be expunged” in The Conversation, 26 September 2012. Her article quoted me on how the shadow cast by old conviction records:

can have a cruel impact on the lives of older gay men prosecuted in the 1970s and before, for conduct which should never have been criminal, and has been legal for over three decades. It can unfairly constrain their employment options and the volunteer work they undertake. Criminal records for breaking bad laws should have been expunged long ago. Such discriminatory laws should not continue to poison the lives of many hundreds of gay and bisexual men.

She concluded: “Fundamental principles of justice, equality and human rights dictate that action be taken so as to remove any lingering stigma.”

With the issue gaining attention I raised it again with the ALP’s LGBTI Affairs policy committee as one that Labor should promise at the 2014 election. The committee agreed. Even before it could go to Labor’s 2013 Conference Opposition Leader Daniel Andrews agreed, and announced at Pride March that a Labor Government would implement this reform. “The pain and stigma of a criminal record has been a burden for many gay men for too long,” Andrews said. “The time has come to clean the slate… “

Meanwhile, and independently, a constituent had urged Prahran MP Clem Newton-Brown to read Noel Tovey’s memoir Little Black Bastard. Moved by the injustice of Tovey’s teenage conviction for buggery, and the unfairness of his treatment, Newton-Brown announced he would seek to persuade his Liberal Party colleagues of the need for reform. A group of human rights and LGBTI organisations met with Newton-Brown, and offered to assist his quest.

It seemed quixotic. I recalled how difficult the Homosexual Law Reform Coalition’s campaign against the offending laws had been in the late 1970s, even with the clear support of the Premier, R J (later Sir Rupert) Hamer, and his attorney-general Haddon Storey. Some nine Liberal MPs crossed the floor against their own Government – all but one National voted against – when the bill was voted on in 1980. (The Labor Opposition supported it unanimously.) I recalled how Liberal MLCs three times frustrated the Cain Government’s attempts from 1983 to add sexual orientation to the Equal Opportunity Act. I recalled the strong currents of prejudice which several Liberal and National MPs still displayed in the 2000s. Still, ever optimistic, not to mention persistent, I agreed with the others we should give it a go.

Led by the Human Rights Law Centre’s Anna Brown, and including Gay and Lesbian Health Victoria, the Victorian Gay & Lesbian Rights Lobby, the Victorian AIDS Council and Liberty Victoria, the group’s offer led to the thorough consideration of the UK scheme to disregard old gay sex convictions, other overseas parallels, the history of laws against gay sex in Victoria, and the story of their abolition over 30 years ago, together with stories of affected individuals. By that time the HRLC was assisting a number of men affected by historical convictions. This research, published as Righting Historical Wrongs, resulted in detailed recommendations for an expungement scheme.  

By the end of 2013 doubts were dissipating: Newton-Brown’s efforts at persuasion might bear fruit. And so it proved. Premier Napthine announced at Midsumma Carnival that his government would legislate for expungement before the election. He invited Noel Tovey, the HRLC and the other groups to join him at Carnival for the announcement, and we were able to present the finalised report to him on the day. We were particularly pleased that the Premier acknowledged in our conversation the need for an apology, not just the legal formalities, and said, as his Attorney-General was to say again in September, that consensual sex between men “should never have been a crime”.

Quite a journey, from my August 1975 jotting, “It would be desirable to expunge criminal records,” on a UK Sexual Offences Bill draft! The Coalition, founded in 1976, included this idea in its equality campaign. In 1977 it proposed expungement to the Premier's Equal Opportunity Advisory Council. The EOAC agreed and included it in its report to Premier Hamer recommending removing laws against gay sex. That reform took three years to reach Parliament. Expungement, however, was to take another 34 years.

The Bill that Robert Clark introduced is good. It could be better. The journey continues.

Jamie Gardiner is Vice President at Liberty Victoria and a member of the HRLC board.