Expungement of historical homosexual convictions

Consensual adult male homosexual activity stopped being a criminal offence in Queensland on 19 January 1991.

If you were charged or convicted for this kind of offence before 19 January 1991, you may be an eligible person and can now apply to have the offence expunged—or cleared—from your record.

What expungement means

A person with an expunged conviction or charge:

• may lawfully say they were not convicted or charged with the expunged offence
• does not have to disclose information about the expunged conviction or charge to anyone
• can’t be excluded, dismissed or otherwise prejudiced in any office, profession or employment because of:
  • the expunged conviction or charge

  or

• a failure to disclose that there was an expunged conviction or charge.

Public record holders must also mark relevant public records to show that a conviction or charge has been expunged.

Eligible offences

Only convictions and charges for relevant offences that occurred before 19 January 1991 can be expunged under the Criminal Law (Historical Homosexual Convictions Expungement) Act 2017 (the Expungement Act).

The Act allows for the expungement of 2 categories of offence:

• Criminal Code male homosexual offences
• public morality offences.

If you are unsure of the specific offence(s) you may have been convicted or charged with, you can still submit an application.

Criminal Code male homosexual offences

Criminal Code male homosexual offences refer to the following repealed offences in the Criminal Code:

• unnatural offences (Section 208(1) and (3) of the Criminal Code, which referred to anal intercourse between 2 males)
• attempts to commit unnatural offences (section 209 of the Criminal Code)
• indecent practices between males (section 211 of the Criminal Code, which referred to all other sexual activity between males, other than anal intercourse)
• any offence of attempting, conspiring, counselling or procuring any of the above offences.

For Criminal Code male homosexual offence expungement applications to be approved, the decision maker   must be satisfied that:

• the other person involved (or allegedly involved) consented to participate in the relevant sexual activity, and  was 18 years or older at the time

and

• the action would not be an offence under any current law of Queensland.

Some convictions or charges may still be considered an offence under the current law of Queensland if it occurred in a public place. However, these convictions could still be expunged if the decision maker is satisfied that another person could only reasonably have witnessed the behaviour if they took some form of ‘abnormal or unusual action’ (e.g. looking under the door of a cubicle in a public toilet).

Public morality offences

Public morality offences refer to the following repealed offences:

• soliciting for an immoral purpose (section 5(1)(b) of the Vagrants, Gaming and Other Offences Act 1931)
• behaving in a riotous, violent, disorderly, indecent, offensive, threatening or insulting manner (section 7(e) of the Vagrants, Gaming and Other Offences Act 1931)
• indecent acts (section 227(1) of the Criminal Code)
• any offence of attempting, conspiring, counselling or procuring any of the above offences.

For public morality offence expungement applications to be approved, the decision maker must be satisfied that:

• the offence involved what would have been regarded as homosexual activity before 19 January 1991 (e.g. wearing gender non-conforming clothing)

and

• the action would not be an offence under any other law of Queensland.

Some convictions or charges may still be considered an offence under the current law of Queensland if it occurred in a public place. However, these convictions could still be expunged if the decision maker is satisfied that another person could only reasonably have witnessed the behaviour if they took some form of ‘abnormal or unusual action’ (e.g. looking under the door of a cubicle in a public toilet.

Who decides

Applications for the expungement of charges or convictions are made to the Director-General of the Department of Justice and Attorney-General or their delegate. They are the decision maker.

How to apply

Complete the expungement application form and post it to:

Director-General
Department of Justice and Attorney-General
GPO Box 149
BRISBANE  QLD  4001

You can apply to have multiple convictions or charges expunged from your record in one application.

Who can apply

An eligible person is a person who was charged with, or convicted of, an eligible offence prior to 19 January 1991. Throughout the form the applicant means the person submitting the application—in most cases the applicant and the eligible person will be the same.

However, the Expungement Act allows a person to apply for the expungement of a conviction or charge of another person in certain circumstances.

A person other than the eligible individual can apply on behalf of someone:

• with impaired capacity
• who has died since 19 January 1991.

If you are applying on behalf of someone, you would need to include additional documentation with the application to verify who you are.

Applying for a person with impairment

If the eligible person has impaired capacity, their application can be made by:

• their guardian (as appointed under Guardianship and Administration Act 2000)
• an attorney under an enduring power of attorney (if the person does not have a guardian)
• a member of their support network (if they do not have a guardian or nominated attorney)
• another person approved by the decision maker (if they do not have a guardian or nominated attorney).

An adult’s support network includes:

• members of their family
• close friends
• other people a tribunal has decided provides support to them.

Applying for a deceased person

You can apply to expunge the charge or conviction  of a deceased person if shortly before their death you were a:

• personal representative (i.e. the executor—original or by representation—or administrator of their estate)
• spouse
• parent
• adult child
• sibling of the person
• in a close personal relationship with them.

A spouse includes a husband/wife, a de facto partner or a civil partner.

Information to provide

The application requests information about the charge or conviction you are applying to have expunged.

Where possible, you need to provide the:

• date of the conviction or charge
• court where the conviction was decided
• details of any sentence imposed.

You are not expected to undertake extensive research to find relevant records, witnesses and documents. However, the form seeks enough information to facilitate the search of the relevant records so that a fully informed decision can be made.

You will also be asked to consent to the exchange of information about your application with entities defined as criminal record holders under the legislation, if required.

Criminal record holders include the Queensland Police Service, the Office of the Director of Public Prosecutions, Queensland Courts and Queensland Corrective Services.

Legal support

You don’t need legal representation to apply for expungement. However, there are some organisations who may be able to help you with your application:

Community Legal Centres Queensland
Phone: (07) 3392 0092

LGBTI Legal Service Inc.
Phone: (07) 3124 7160

What happens next

Once your completed application is received, your information will be assessed against the criteria relevant to the conviction or charge you are seeking to have expunged.

Further information about your application may be requested from:

• a criminal record holder (public records relevant to your conviction or charge)
• you (further information or documentation and, if necessary, statutory declaration verifying the information)
• another person or entity (information that is not publicly available—with your consent).

If the decision maker is considering refusing your application, you will be notified  of the proposed decision and the reasons behind it. You can then respond to the proposed refusal before a final decision is made.

You may withdraw your application (or part of your application, for multiple offences) at any stage in the process.

If your application is refused

If your application to expunge a conviction or charge is refused, you can apply to have the decision reviewed in the Queensland Civil and Administrative Tribunal.

False or misleading information

A conviction or charge that is expunged under the Expungement Act on the basis of false or misleading information may be revived.

It is an offence under the Expungement Act to give information you know to be false or misleading. This offence carries a maximum penalty of 100 penalty units.