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New Zealand: Legislation Enabling Wiping of Historical Homosexual Convictions Enacted

(Apr. 11, 2018) On April 3, 2018, the New Zealand Parliament passed the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill, and it was signed into law on April 9. (Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill, NEW ZEALAND PARLIAMENT (last visited Apr. 11, 2018); Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill (“Bill”), New Zealand Legislation website.) The legislation establishes a system that enables “men who were convicted of specific offences that have since been decriminalised to apply to be treated as if they had never been convicted.” (Wiping Historical Homosexual Convictions, MINISTRY OF JUSTICE (last visited Apr. 9, 2018).)

Offenses related to homosexual conduct were removed from the Crimes Act 1961 by the Homosexual Law Reform Act 1986. (Homosexual Law Reform Act 1986, New Zealand Legislation website.) However, convictions before that date remain on a person’s criminal record as “[t]here is no general rule that a person’s conviction is disregarded because the conduct concerned is no longer an offence.” (Wiping Historical Homosexual Convictions: Questions and Answers, MINISTRY OF JUSTICE (last visited Apr. 9, 2018).)

Men who were convicted of the following offenses will be able to submit an application to the Secretary of Justice to have their convictions expunged:

  • Crimes Act 1961, section 141 (indecency between males)
  • Crimes Act 1961, section 142 (sodomy)
  • Crimes Act 1961, section 146 (keeping place of resort for homosexual acts)
  • Crimes Act 1908, section 153 (unnatural offence), but only for offences committed with any other male human being
  • Crimes Act 1908, section 154 (attempt to commit unnatural offence), but only for offences attempted to be committed with or against any other male human being (Id.; Crimes Act 1961 (as enacted), NZLII website; Crimes Act 1908, NZLII website.)

Representatives, such as family members, of people who have since passed away can also apply to have the convictions expunged. (Bill cls 14 & 15.) The Secretary must be satisfied, on the balance of probabilities, that the conduct for which the conviction was entered would not be an offense under current law. (Id. cl 8.)

The introduction of the Bill followed the presentation in the Parliament of a petition, created by Wiremu Demchick and gaining the support of 2,111 others, asking that “in the matter of those who were convicted of consensual homosexual acts prior to the Homosexual Law Reform Act 1986, the House, (a) promptly issue an official apology to those convicted, and (b) pass legislation which sets out a process for reversing the convictions of those convicted, both living and deceased, in a manner which upholds the mana and dignity of those convicted.” (Petition of Wiremu Demchick and 2,111 Others, NEW ZEALAND PARLIAMENT (last visited Apr. 9, 2018).)

The then-Minister of Justice, Amy Adams, upon introducing the Bill in July 2017, also moved that the Parliament apologize to the men convicted of the offenses, and this motion was passed. (Parliamentary Debates (Hansard), First Reading, Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill (Amy Adams), 6 July 2017.)

In a press release following the third reading of the Bill, the current Minister of Justice, Andrew Little, stated,

I would like to apologise again to all the men and members of the Rainbow Community who have been affected by the prejudice, stigma and other negative effects caused by convictions for historical homosexual offences.

This Bill sends a clear signal that discrimination against gay people is no longer acceptable and that we are committed to putting right, wrongs from the past. (Press Release, Hon. Andrew Little, Bill Wipes Historic Homosexual Convictions (Apr. 3, 2018).)