The Queensland government has said people convicted of consensual anal sex offences at age 16 or 17 before the age of consent was changed last year won’t be included in its proposed historical gay sex conviction expungement scheme.
Last month, Premier Anastacia Palaszczuk apologised to the hundreds of Queenslanders convicted for consensual gay sex before homosexuality was decriminalised in the state in 1991.
The government also introduced a bill that would establish a scheme allowing those people to apply to have such convictions expunged.
Last year, the age of consent for anal intercourse – still referred to at the time as “sodomy” in the Criminal Code – was lowered from 18 to 16 to bring it into line with the age of consent for vaginal sex and correcting a decades-old discrepancy that discriminated against gay teenagers.
The Queensland Law Reform Commission (QLRC) recommended expungement be available to people based on the current age of consent, but the government has said people convicted of “sodomy” offences between 1991 and 2016 will not have those convictions expunged.
Attorney-General Yvette D’Ath said last month the government’s bill to wipe historical convictions will retain the age of consent of 18, the age at the time homosexuality was decriminalised.
“This retains the expungement scheme’s nexus with the decriminalisation of consensual adult homosexual activity and confirms that the scheme is only applicable to homosexual charges and convictions,” she told parliament.
“It also ensures that there is no discrimination between people charged or convicted with offences between 1991 and 2016 or people charged before the age of consent for sexual activity other than anal intercourse was changed in Queensland in 1976 from 17 years to 16 years.”
Justice and Attorney-General Department principal legal officer Sarah Kay confirmed to a parliamentary committee on Wednesday that the proposed expungement scheme will not cover anal sex convictions between 1991 and 2016.
“The age of consent changes at various times in different jurisdictions for various reasons but this bill isn’t actually addressing differences in the age of consent, it’s addressing the decriminalisation of homosexuality. It’s tied to that purpose,” she said.
Kay told the hearing consensual anal sex offences were prosecuted for gay and straight people aged 16 and 17 until 2016, with the Director of Public Prosecutions considering public interest factors in determining whether to prosecute such offences.
“If we extended the scheme up to 2016 it would encompass people who may perhaps actually be currently serving sentences of imprisonment,” she said.
“It would expand the scheme hugely if we were to include [both]… We could exclude heterosexual convictions but that may be unfair.
“But if you were to include all the convictions right up to 2016, this would be a much larger scheme and arguably what the QLRC has recommended is an administrative scheme. It may not be appropriate for an administrative scheme to be looking at convictions as recent as 2016.
“It would be a much wider scheme, a much more expensive scheme and a much more resource-intensive scheme – a completely different scheme to the scheme the QLRC has recommended.”
The government’s expungement bill is still before the parliamentary committee.