Questions and answers

What is this all about?

In the past Tasmanians were charged and convicted for consenting adult male-to-male sex and for cross-dressing. These are no longer crimes but people charged under Tasmania’s former laws still face difficulties because of their criminal record. This can include when applying for a job or a volunteer position.

The Tasmanian Parliament has now recognised that homosexuality and cross-dressing should never have been crimes. Tasmania’s political leaders have apologised for the pain and distress caused to individuals and their families by this criminalisation. It is now possible for relevant historical charges and convictions to be expunged so they will no longer appear on a police criminal history check.

What is the scheme?

The Expungement of Historical Offences Act 2017 establishes a scheme to expunge historical offences that would not be a criminal offence today.

The expungement of historical offences scheme (EHOS) enables charges and convictions for historical homosexual and cross-dressing offences to effectively be removed from a person’s official criminal record.

Applications under the scheme are treated confidentially and applicants can nominate a preferred method of communication.

If a person’s historical charge is expunged, then

  • the person is not required to disclose the charge or conviction, including when giving evidence under oath
  • the charge and any conviction is taken not to form part of the person’s official criminal history
  • the disclosure (or non-disclosure) of an expunged charge or conviction is not proper grounds for refusing a person any appointment, office, status or privilege and
  • it is an offence for any other person without authority to disclose or seek to obtain information about a person’s expunged charge or conviction.

Under the scheme, a person (or an appropriate representative) can make a free and confidential application to the Secretary of the Department of Justice for a charge relating to a historical homosexual or cross-dressing offence to be expunged.

The Secretary will obtain records about the charge from the police and the courts.  In most cases, this information will be sufficient for the application to be determined.  Applicants will not be required to attend a hearing or provide oral evidence.

If a charge is expunged, then the official police, prosecution and court records will be noted to show that the charge has been expunged.

What type of offences are covered?

The scheme applies to sexual and public morality offences of a homosexual nature and to cross-dressing offences. The conduct must not be an offence under Tasmanian law today.

The scheme is likely to cover offences such as:

  • Consensual sexual activity of a homosexual nature;
  • Loitering or soliciting for homosexual purposes;
  • A male in a public place after dark dressed in female apparel.

The scheme also applies to attempting to commit offences, and offences of inciting, investigating, aiding or abetting the commission of an offence.

Homosexual offences repealed in 1997 were sections 122(a), 122(c) and 123 of the Criminal Code Act 1924.  A cross-dressing offence is an offence under section 8(1)(d) of the Police Offences Act 1935 as in force before 12 April 2001.

The scheme does not apply to other historical offences.

What if I was found guilty but not convicted?

Sometimes a person may have pleaded guilty or been found guilty of an offence but the court may not have recorded a conviction.

A finding of guilt may still be listed on a criminal record and charges, convictions and findings of guilt without a recorded conviction can be expunged under the scheme.

What about interstate convictions?

This scheme only applies to charges that were recorded in Tasmania.  If the offence occurred in another state or territory, you cannot apply under this scheme. You will need to contact the other state or territory to see if they have an expungement scheme.

Who can apply?

  • A person who has been charged with a historical homosexual or cross-dressing offence or
  • Where the person has died or lacks legal capacity to make an application, an appropriate representative (in order of priority)
    • The spouse of the person
    • A son or daughter of the person, if 18 years of age or over
    • The parent of the person
    • The sibling of the person, if 18 years of age or over
    • A niece or nephew of the person, if 18 years of age or over
    • The legal personal representative of the person
    • A person determined to be an appropriate person by the Secretary of the Department of Justice.

The legislation applies this order of priority for determining who can make an application as an appropriate representative. That is, a son or daughter of the applicant is only an appropriate representative if no spouse is available, and so on through the order of priority.

What if I have more than one charge?

An application may relate to multiple charges. Details of all relevant charges that you are seeking to expunge can be included in a single application and will be considered concurrently.

How do I apply?

There are several ways to prepare and submit an application. You can choose to apply online, or download an application and submit by email or post.

All applicants (or appropriate representatives) need to provide certified identity documents to establish their right to make the application and to access personal information.

The consent section of the form must be completed. This consent allows us to make enquiries about this matter on your behalf and request a criminal history check.

The information we collect will help us locate the official records. We understand that these matters took place a long time ago and that you may not remember a lot of detail. Please complete the application form as best you can.

Applications can be emailed to:

ehos@justice.tas.gov.au

Alternatively, applications can be posted to:

Personal and Confidential, EHOS Unit, PO Box 56, Rosny Park, Tas 7018.

What are the application fees?

There is no fee to lodge an application under the scheme.

How does the application process work?

You will receive an acknowledgement once your application has been received using the communication method you nominate in your application.

We will then request a Tasmania Police History Check on your behalf.

Once the Police History Check confirms the offences, we will ask Tasmania Police, the Director of Public Prosecutions and the relevant court to locate more detailed records regarding the charge or conviction. We will provide this information to you.

In some instances, we may also verify information with the Registrar of Births, Deaths and Marriages. For example, we will need proof of death for applications made on behalf of a deceased person.

We may request further information from you in order to assess your application if we cannot obtain adequate information from the official records. This could include a written statement to clarify events relating to a charge.

Follow this link for a detailed diagram of the Expungement of Historical Offences process (pdf, 432.6 KB). Please contact us if you require the diagram in an alternative format.

Will other persons involved be contacted?

If another person was involved in the conduct constituting the offence, they will be contacted and given a reasonable opportunity to make a submission before making a decision on your application. This will be done with regard to the sensitivity of the information, and the confidentiality and privacy of both parties.

Will I have to give evidence or go to court?

No. Your application is assessed on the official records held by the police, prosecutors or the courts.  In most cases, this information will be sufficient for the application to be determined.

If more information is needed, then you may be asked for additional information or documents.  In some cases a Statutory Declaration may be required.

If another person was involved in the conduct constituting the offence, we will need to determine whether both parties consented and the respective ages at the time of the conduct. This will be done on written evidence from official records, from the other person involved, or from another person with knowledge of the circumstances in which the conduct occurred. This is to ensure that a charge that is still a crime today is not expunged.

Where the offence does not involve another party, such as a conviction for offensive behaviour, the conduct must not be considered offensive in today’s society.

Who will decide the outcome of my application?

The Secretary of the Department of Justice will decide whether your application is successful or not.  The Secretary must be satisfied that the conduct would not be an offence today.

We will advise you of the Secretary’s decision and the reasons for the decision.

The application process might take several months, as we need to request a Tasmania Police History Check, locate historical records and assess your application. However, we will deal with your application as quickly as possible.

Can I be confident that the application process is confidential and respects my privacy?

Yes. Access to your application will be restricted to the Secretary, those advising the Secretary, the EHOS Unit and the agencies who are searching for your records – all of whom are bound by strict confidentiality obligations.   In some cases, we may also verify your personal information with the Registrar of Births, Deaths and Marriages.

It is an offence under Section 13 of the Expungement of Historical Offences Act 2017 for unauthorised disclosure or communication of any information relating to an application.

Your application will be handled sensitively and we will be mindful of your confidentiality and privacy at all times. We will communicate with you by your nominated preferred method of contact and all material will be sent to you discreetly and marked ‘private and confidential’.

What happens if an application for expungement is successful?

If a charge is expunged, a note will be added to all official police and court records to show that the charge is expunged and that it is an offence to disclose the expunged information. This includes records relating to any charge, conviction, investigation, associated arrest or detention.

Any information about an expunged charge is taken not to form part of the person’s official criminal record, and is not required to be disclosed. It will not show up on a Tasmanian or National Police History Check.

A person with an expunged charge may legally claim not to have been convicted, and is not required to disclose any information about the expunged charge for any purpose, including when giving evidence under oath in legal proceedings. They cannot be refused any appointment, office, status or privilege on the grounds of any information about an expunged charge.

If an application is unsuccessful, can the decision be appealed?

Yes. An applicant or appropriate representative can apply to the Magistrates Court (Administative Appeals Division) for a review of the Secretary’s decision.

The agencies that hold the official records, such as the police or prosecuting authority, can also appeal the decision of the Secretary.

Can I withdraw my application?

Yes. An application can be withdrawn at any time (prior to a determination) by notifying the Secretary. Contact us for details.

Where can I find out more information about the scheme?

Visit the Expungement of Historical Offences Act 2017 (external link) for more information about the scheme.

The legislation was passed by both houses of Parliament in November 2017. Follow this link to read the second reading speech, clause notes and fact sheet (external link).

Who can I contact for assistance or support during the application process?

We understand that it may be distressing to recall past events during this application process.

Free and confidential legal assistance and support services are available.

Any other questions

Please contact the EHOS Unit.

Acknowledgement

These frequently asked questions have been prepared based on information published by the Department of Justice and Regulation Victoria.